Six women were killed in the Little Havana and Allapattah neighborhoods of Miami between September 1994 and January 1995. Five were street prostitutes; the sixth was a fifteen-year-old girl. The press named the case after the road their bodies were found near, and Rory Enrique Conde was arrested in June 1995 after a surviving victim identified him.
This is the appellate record: 424 pages across two dockets in the Supreme Court of Florida, SC00-789 and SC06-1998. The gap between them is six years, and the two proceedings are different animals. The first is the direct appeal from the conviction and death sentence. The second comes after post-conviction proceedings, where the question is no longer what happened but whether the trial and the lawyers who ran it met the standard the constitution sets.
Reading them together shows a capital case changing shape: the arguments move from the evidence to the process that handled it.
There is no opinion in this set, which is a real limit on what the page can tell you: both sides argue and the court never answers. Whatever the justices made of the ineffective-assistance claims in the second docket is not here, and the decisions themselves are published separately. What you get instead is unusually clean advocacy, each side's case at full length with nothing edited out by a judge summarizing it.
The killings themselves are barely described in these pages. Conde was arrested in June 1995 after a woman who survived him identified him to Miami police, and by the time a brief is being written all of that is assumed rather than told: what the lawyers argue about is jury selection, the statements he gave, expert testimony and the instructions the judge read out. It is a document about how a capital case was handled, not about what was done.
Post-conviction proceedings quote things that were once privileged - what the trial lawyers told each other, what they told Conde, what their files held - and all of it is public now, because it was filed with a court in support of a claim that those lawyers failed him. That is how the second docket comes to contain material the first could never have. Public record, free to reproduce, scanned by the FSU College of Law.
At 64 per cent legible in its worst stretches this is the roughest scan in the category, and the consequence is visible rather than hidden: names come through mangled and stay that way, because we repair a word only when exactly one real word fits and a surname almost never meets that test. We did repair 1,355 words that did, closed the scattered letters, and rejoined the paragraphs. Where two readings were possible nothing was changed. 177 rows of merged citation table came out with the contents pages.
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC00,789
Appellant,
THE STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT,
11TH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY
INITIAL BRIEF OF APPELLANT
Benjamin S. Waxman, Esquire
Specially Appointed Public Defender Counsel for Rory Enrique Conde 2250 Southwest Third Avenue, 4th Floor Miami, Florida 33129 Telephone: (305) 858-9550 Facsimile: (305) 858-7491 TABLE OF CITATIONS........................................ viii
STATEMENT OF THE CASE AND FACTS.......................... 1
A. Guilt Phase.......................................... 1
2. Discovery of the Homicide Victims................... 1
3. The Link Between the Homicides; Investigative Link to Rory Conde.............................. 3
4. The Arrest and Interrogation of Rory Conde............. 4
5. The Confession.................................. 6
6. Pretrial Proceedings.............................. 12
B. Penalty Phase....................................... 17
2. State Witnesses................................. 17
3. Defense Witnesses............................... 18
4. Sentencing Order................................ 24
SUMMARY OF THE ARGUMENTS.............................. 24
ARGUMENTS AND CITATIONS OF AUTHORITY.................. 27
I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S CAUSE CHALLENGES TO DEATH-
PRONE JURORS FOR WHOM THERE WAS
MANIFEST REASONABLE DOUBT ABOUT THEIR
iii
1. Prospective Juror Groom.......................... 28
2. Prospective Juror William Hernandez................. 29
3. Prospective Juror Huey........................... 30
4. Prospective Juror Owens.......................... 31
5. Prospective Juror Rolle........................... 31
II. THE TRIAL COURT ERRED IN STRIKING VENIRE34
PERSON AGUIRREGAVIRIA FOR CAUSE WHERE
SHE SPECIFICALLY STATED SHE COULD VOTE
FOR THE DEATH PENALTY UNDER APPROPRIATE
III. THE CIRCUMSTANTIAL EVIDENCE WAS LEGALLY
INSUFFICIENT TO SUPPORT MR. CONDES
PREMEDITATED MURDER CONVICTION............... 35
IV. THE TRIAL COURT REVERSIBLY ERRED BY
ADMITTING VOLUMINOUS EVIDENCE OF FIVE
UNCHARGED HOMICIDES IMPERMISSIBLY
RENDERING THIS EVIDENCE A FEATURE OF THE
CASE AND DENYING THE DEFENDANT A FAIR
V. THE TRIAL COURT REVERSIBLY ERRED IN
ADMITTING IRRELEVANT AND UNFAIRLY
PREJUDICIAL EVIDENCE OF (A) RORY’S
AGGRAVATED BATTERY/FALSE IMPRISONMENT
OF A WOMAN SIX MONTHS FOLLOWING THE
CHARGED HOMICIDE; (B) A POLICE OFFICER’S
WARNING TO DUNN THIRTY-SIX HOURS BEFORE
HER DEATH REGARDING “THE TAMIAMI STRANGLER' AND (C) RORY’S CONCEALMENT AT
THE TIME OF HIS ARREST........................... 48
A. The Gloria Maestre evidence.................. 48
B. The Tamiami strangler warning................. 52
C. Defendant's concealment at the time of arrest...... 53
VI. THE CUMULATIVE EFFECT OF IMPROPER
PROSECUTORIAL COMMENTS DURING GUILT
PHASE OPENING STATEMENT AND CLOSING
ARGUMENT DENIED MR. CONDE A FAIR TRIAL........ 53
VII. THE TRIAL COURT ERRED IN FAILING TO
SUPPRESS MR. CONDES CONFESSION WHERE (1)
COERCIVE INTERROGATION RENDERED HIS
HIG RIGHTS TO SILENCE AND COUNSEL WERE
NOT KNOWINGLY, INTELLIGENTLY, OR
VOLUNTARILY RENDERED; (3) POLICE FAILED TO
HONOR HIS RIGHT TO A PROMPT INITIAL
APPEARANCE; (4) HIS INTERROGATION VIOLATED
THE VIENNA CONVENTION.......................... 58
A. Facts......................................... 58
C. Miranda waiver not knowing, intelligent and involuntary... 63
D. Failure to provide prompt initial appearance............. 63
E. Violation of Vienna Convention...................... 64
VIII. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
ESTABLISH THE AGGRAVATORS CCP AND HAC........ 64
A. Legal Standard................................. 65
IX. THE TRIAL COURT ERRONEOUSLY REJECTED
A. Legal Standard................................. 76
B. Extreme Emotional and Psychological Disturbance....... 76
C. Defendant's Capacity to Appreciate the Criminality of his Conduct or Conform Conduct to the Requirements of law Substantially
X. THE DEFENDANT WAS DENIED A FAIR
SENTENCING HEARING AS A RESULT OF THE
TRIAL COURT'S ERRONEOUS ADMISSION OF
COLLATERAL CRIMES EVIDENCE AND THE
PROSECUTOR'S RELATED IMPROPER
XI. THE TRIAL COURT ERRED IN EXCLUDING
CRUCIAL DEFENSE EVIDENCE OF MR. CONDE
BEING SEXUALLY ABUSED AS A CHILD IN
VIOLATION OF HIS RIGHT TO PRESENT
XII. IMPOSITION OF THE DEATH PENALTY AGAINST
CONDE IS CONSTITUTIONALLY
XIII. FLORIDA’S DEATH PENALTY STATUTE VIOLATES
THE UNITED STATES AND FLORIDA
CONSTITUTIONS BECAUSE IT (1) DOES NOT
REQUIRE NOTICE OF AGGRAVATING
CIRCUMSTANCES OR (2) REQUIRE SPECIFIC JURY
FINDINGS REGARDING THE SENTENCING
FACTORS; (3) PERMITS A NON-UNANIMOUS RECOMMENDATION OF DEATH; (4) IMPROPERLY
SHIFTS THE BURDEN OF PROOF AND
PERSUASION TO THE DEFENSE; AND (5) FAILS ADEQUATELY TO GUIDE THE JURY'S
CERTIFICATE OF SERVICE.................................... 97
CERTIFICATE OF COMPLIANCE............................... 97
vii
TABLE OF CITATIONS
Adams v. Texas Almeida v. State, 748 So.2d 922 (Fla. 1999)................................... 69 Alvarez v. State, 574 So.2d 1119 (Fla. 3rd DCA 1991)........................... 58 Apprendi v. New Jersey, Berger v. United States, Bertolotti v. State, 476 So.2d 130 (Fla. 1985)................................... 53 Birren v. State, viii TABLE OF CITATIONS (continued)
429 (Fla. 1927)........................... 69 Brown v. Mississippi, Brooks v. State, 762 So.2d 879 (Fla. 2000)................................. 58,90 Bryant v. State, 656 So.2d 426 (Fla. 1995)................................... 34 Buckner v. State, 714 So.2d 384 (Fla. 1998)................................ 65, 73 Bush v. State, 690 So.2d 670 (Fla. 1st DCA 1997)......................... 40, 45 TABLE OF CITATIONS (continued)
Carpenter v. State, 785 So.2d 1182 (Fla. 2001)............................. 36, 37,71 Cheshire v. State, 568 So.2d 908 (Fla. 1990)................................... 72 Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994)................................ 63 Combs v. State, 525 So. 2d 853 (Fla. 1988).................................. 96 Conley v. State, 620 So.2d 180 (Fla. 1993)................................... 50 Consalvo v. State, 697 So.2d 805 (Fla. 1997), cert. denied, TABLE OF CITATIONS (continued)
Connor v. State, No.SC93697,2001, WL1013245 (Fla. Sept. 6, 2001)............... 63 Crump v. State, 622 So.2d 963 (Fla. 1993)................................... 71 Dailey v. State, 594 So.2d 254 (Fla. 1992)................................... 53 Davis v. State, 397 So.2d 1005 (Fla. 1st DCA 1981)........................... 58 Deangelo v. State, 616 So.2d 440 (Fla. 1993)................................... 73 Donaldson v. State, 722 So.2d 177 (Fla. 1998)................................... 73 TABLE OF CITATIONS (continued)
State, 699 So.2d 988 (Fla. 1997), cert. denied Espinosa v.Florida, Farina v. State, 680 So.2d 392 (Fla. 1996)................................... 34 Farinas v. State, 569 So.2d 42 (Fla.1990).................................... 93 xii TABLE OF CITATIONS (continued)
515, 520(5th Cir.), cert. denied, Finney v. State, 660 So.2d 674 (Fla. 1995), cert. denied....................... 71,89 Foburg v. State, 744 So.2d 1175 (Fla. 2nd DCA 1999)........................... 43 Gary v. Mississippi, Geralds v. State, 601 So.2d 1157 (Fla. 1992).................................. 65 Gore v. State, 719 So.2d 1197 (Fla. 1998)............................... 53, 54 xiii TABLE OF CITATIONS (continued)
Griffin v. State, 639 So.2d 966 (Fla. 1994), cert. denied, Hartley v. State, 686 So.2d 1316 (Fla. 1996), cert. denied, Henry v. State, 574 So.2d 73 (Fla. 1991)............................... 39, 40, 42 Henry v. State, 586 So.2d 1335 (Fla. 3rd DCA 1991)........................... 28 Hitchcock v. State, 578 So.2d 685 (Fla. 1990),................................ 72,90 Hoefert v. State, 617 So.2d 1046 (Fla. 1993)............................... 36, 37 xiv TABLE OF CITATIONS (continued)
Holland v. State, 636 So.2d 1289 (Fla. 1994), cert. denied Hoskins v. State, 702 So.2d 202 (Fla. 1997)................................... 71 Huddleston v. United States, Jackson v. Dugger, 837 F.2d 1469 (11th Cir.), Jones v. State, 92 So. 2d 261 (Fla. 1956)................................... 95 Jones v. United States, TABLE OF CITATIONS (continued)
Kearse v. State, 770 So.2d 1119 (Fla. 2000), cert. denied, Keen v. State, 775 So.2d 263 (Fla. 2000).............................. 50, 51,64 Kirkland v. State, 684 So.2d 732 (Fla. 1996)................................... 36 Knight v. State, 672 So.2d 590 (Fla. 4th DCA 1998).......................... 54,75 Knowles v. State, 632 So.2d 62 (Fla. 1994).................................... 85 Lewis v. State, 780 So.2d 125 (Fla. 3rd DCA 2001)(rhr'g en banc)............. 54, 58 Lockett v. Ohio, xiv TABLE OF CITATIONS (continued)
532 (Fla. 2001)................................... 96 Miranda v. Arizona, Nibert v. State, 508 So.2d 1 (Fla. 1987)..................................... 65 xvii TABLE OF CITATIONS (continued)
Nibert v. State, 574 So.2d 1059 (Fla. 1990)................................ 69,76 O’connor v. State, Old Chief v. United States, Overton v. State, No. SC 95404, 2001 WL 1044890 (Fla. Sept. 13, 2001)..... 27, 28, 33,72 Pacifico v. State, 642 So.2d 1178 (Fla. 1st Cir. 1994)....................... 51, 54, 58 Randall v. State, 760 So.2d 892 (Fla. 2000)........................... 35, 36, 37,71 Reck v. Pate, xviii TABLE OF CITATIONS (continued)
Riverside v. McLaughlin, Rogers v. State, 511 So.2d 526 (Fla. 1987), Ruiz v. State, 743 So.2d 1 (Fla. 1999).................................. 54, 58 San Fartello v. State, 154 So.2d 327 (Fla. 2nd DCA 1963)............................ 43 Santos v. State, 591 So.2d 160 (Fla. 1991)................................... 67 Snowden v. State, 537 So.2d 1383 (Fla. 3rd DCA), rev. denied, 540 So.2d 1210 (Fla. 1989)..................... 40, 45 xix TABLE OF CITATIONS (continued)
Spanno v. New York, Spencer v. State, 645 So.2d 377 (Fla. 1994)......................... 66,75,76,77,84 State v. Baird, 572 So.2d 904 (Fla. 1990)................................... 50 State v. Barker, Case No. 49605.93080CF-095544............................. 96 State v. Conde, 743 So.2d 78 (Fla. 3rd DCA 1999)............................. 12 State v. Dixon, 283 So. 2d 1 (Fla. 1973).................................... 72 State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).................................. 96 TABLE OF CITATIONS (continued)
381 (Fla. 1994), xxi TABLE OF CITATIONS (continued)
Walton v. Arizona, Weeks v. Delaware, Willacy v. State, 696 So.2d 693 (Fla. 1997)................................... 65 Williams v. State, 117 So.2d 473 (Fla. 1960)......................... 40, 45,63.69,96 Wuornos v. State, 644 So.2d 1000 (Fla. 1994),
U. S. CONSTITUTION
xxii TABLE OF CITATIONS (continued)
Fourth Amendment........................................ 63 Sixth Amendment.................................. 27, 34,90,94 Eighth Amendment..................................... passim Fourteenth Amendment.................................. passim
FLORIDA CONSTITUTION
Art. I, Section 9................................... 27,34,90,93 Art. I, Section 16....................................... 27,34 Art. I, Section 17...................................... passim
FLORIDA STATUTES
xxiii TABLE OF CITATIONS (continued)
OTHER AUTHORITIES
C. EHRHARDT, FLORIDA EVIDENCE § 404.17 (2000).................... 49 Article 36, Vienna Convention, 21 U.S.T. 77.......................... 64 xxiv TABLE OF CITATIONS (continued)
STATEMENT OF THE CASE AND FACTS
Rory Conde was tried on one count of a six count Indictment charging six separate premeditated murders. (R1-1-4). He appeals his conviction for the premeditated murder of Rhonda Dunn and sentence of death. (R9-1723-5).
A. Guilt Phase
1. Overview. On six different dates from September, 1994, through January, 1995, the bodies of six prostitutes were discovered at roadside locations near the Tamiami Trail (S.W. 8th Street) in Dade County. Each victim had been strangled and died of asphyxiation. DNA testing led police to link the homicides.
In a seemingly unrelated event, in June, 1995, a woman was discovered bound and trapped in Rory Condes apartment. During the investigation of this crime scene, a bee per was discovered which one of the detectives recognized as possibly having been missing from one of the homicide victims. Mr. Conde was arrested based on this crime victim's identification of him as the person who had bound and raped her.
Shortly after his arrest, Conde was interrogated by homicide detectives investigating the six murders. He eventually gave statements implicating himself. DNA and other crime scene evidence ultimately linked him, his apartment, and his automobile to each of these homicides. Rhonda Dunn, the victim of the homicide for which Conde was tried and convicted, was the last of the homicide victims.
2. Discovery of the Homicide Victims. On September 16, 1994, the body TABLE OF CITATIONS (continued)
of a residential neighborhood near the Tamiami Trail. (v116- 6171-4, 6310-13). 1 He was dressed in woman's clothing. (v116 6176, 6192-3; SR1-167). The cause of death was asphyxiation from strangulation. (v117-6381-6401). Body fluids and specimens were collected for rape and DNA testing. (v117-6401-5).
On October 8, 1994, the body of Elisa Martinez was discovered on a grass swale of a southwest, Miami, residential neighborhood. (v116-6203-7, v117-6254-64;
SR1-180-87). She, too, had been strangled to death. (v118-6420-33). Body fluids were collected from her. (v119-6606).
On November 20, 1994, the body of Charity Nava was discovered beside a road of a residential neighborhood near the Tamiami Trail. (v117-6268-76; 6313-18;
SR2-236-47). Her back was covered with writing in black magic marker including the following messages: “Third!,” “I Will Call Dwight C.H.A.N. 10,” a pair of eyes followed by the words “If You Can Catch Me,” and “NyR.” (v117-6278-9; SR1- 189). She, too, had been strangled and died of asphyxiation. (v118-6434-47). Body The Record on Appeal, consisting of 9 volume of pleadings and documents from the trial court file, will be referred to by volume and page number, e.g., R3-652. The Transcript of Proceedings, consisting of 149 volume of trial and other proceedings transcripts, will be referred to by volume and page number, e.g., v86-3215. The Supplemental Record on Appeal, consisting of 4 volume of exhibits, will be referred to by volume and page number, e.g., SR3-444-6. The First Supplemental Record on Appeal, consisting of 4 volume of pleadings and transcripts related to Mr. Condes various motions to suppress evidence and statements, will be referred to by volume and page number, e.g., SRiii-362.
xxvi TABLE OF CITATIONS (continued)
fluids were collected for rape and DNA testing. (v117-6272-3).
November 26, 1994, the body of Wanda Crawford was discovered in a grass, roadside area near the Tamiami Trail. (v117-6310-20). Crawford also had been strangled to death. (v118-6447-66). Rape kit testing was conducted.
December 17, 1994, the body of Necole Schneider was discovered in a grass swale of another residential neighborhood near the Tamiami Trail. (v117-6329- 35, 6340-54). She was wearing a dress and a single shoe. (v117-6343). There were tire marks nearby and a mark on her right leg which the police believed had been made by a tire. (Id. at 6344-5). Schneider had been strangled to death. (v118-6466-79).
Body fluid samples were collected for testing. (v117-6335).
body was discovered on January 12, 1995, also in a grass swale near the Tamiami Trail. (v123-7091). She was clothed only in a silk jacket and white spandex shorts. (V123-7092). Dunn died from strangulation asphyxiation. (v123- 7138). Bodily fluids and specimens were collected. (v123-7125-30).
3. The Link Between the Homicides; Investigative Link to Rory Conde. By Thanksgiving, 1994, between the third and fourth homicides, the police, through DNA analysis, had established a link between the murders. (v119-6664-5, 6676-80). The existence of this link was conveyed to the homicide detectives. (v119- 6679-80, 6716-17; v125-7200-1). As DNA links between the subsequent homicides continued to be discovered, the homicide detectives were apprise. (v119-6716-17).
xxvii TABLE OF CITATIONS (continued)
June 19, 1995, a woman was discovered half naked, wrapped in duct tape, and trapped in Condes apartment. She identified Conde as her assailant. (v118-6536- 48). A Miami-Dade homicide detective dispatched to Condes apartment during the subsequent investigation identified a green bee per that he believed belonged to one of the homicide victims but was missing. (v117-6299-6309). Shortly afterwards, a Miami- Dade police DNA specialist advised the homicide detectives that Conde might be involved with the homicides. (v119-6720). Further investigation linked Conde to his grandmother, Maria Rojas, who resided in Hialeah.
4. The Arrest and Interrogation of Rory Conde. On Saturday, June 24, 1995, four armed Miami-Dade homicide detectives went to Condes elderly grandmother's apartment to locate him for interrogation. (v122-6963-68). Ms. Rojas was noticeable nervous. After Rojas indicated Rory was present, the detectives entered. (v122-6967-72; v123-7014). Detective Estopinan observed Rory in a back room, kneeling beside a bed. (v122-6972). He ordered Rory to freezer. Rory immediately got up and walked toward the front of the apartment. (v122-6972-3).
Estopinan grabbed Rory and escorted him outside where he handcuffed him. (v122-
6973-5).
The detectives took Rory to the Miami-Dade homicide bureau. They had Rory execute a Miranda rights waiver, a consent to search his apartment, and a consent to xxviii TABLE OF CITATIONS (continued)
search his automobile. (v122-6977-84; v123-6994-7003; v125-7211-32; SR2-350-55).
About two hours later, the detectives had Rory sign a consent to provide saliva and blood sample which were collected from him. (v125-7232-33; SR2-298-9).
Rory remained in police custody for nearly 14 hours. (v123-7016-17). He was interrogated by at least three veteran homicide detectives in an interrogation room for more than 12 hours. (v123-7017-18; v125-7246-7, 7249; v127-7555). The detectives showed Rory photographs of the homicide victims. (v125-7247-8). They advised him that there was physical evidence, including DNA, that connected him to the homicides and that he would be charged with these crimes soon. (v123-7018-19; v127-7569).
They told him “it would be best” if he were truthful. (v123-7019). Rory identified Martinez and stated that he had used her services before. (v125-7248). The interrogation terminated at 2:30 a.m. the next morning when Rory was taken to TGK, a detention facility. He continued to deny any involvement with the homicides. (v125-
7246-9).
On Sunday, June 25, 1999, at approximately 2:00 p.m., the detectives retrieved Rory from TGK. (v125-7251-2, 7254-6; v127-7564). After placing him back in the interrogation room, they had Rory execute another Miranda waiver. (v125-60; SR2- 359). The interrogation continued several hours until Rory was allowed to use a telephone. (v125-7267-8; v127-7565-6). Rory spoke on a telephone for about 45 minutes to his grandmother, and then his wife and children. (v125-7268). Lead xxix TABLE OF CITATIONS (continued)
detective Romagni over heard Conde tell his wife that he loved her and the children and that he was “sorry for everything.” (V125-7268-9; v127-7571-2).
At approximately 5:00 p.m., when interrogation recommended, Romagni testified that Rory stated he had “killed them.” (v125-7270-2). In response to Romagni's questioning, Rory gave a statement about each of the six homicides.
(v125-7279-82). This interrogation lasted approximately two hours.
Thereafter, the detectives began interrogating Rory about the homicides a second time, this time in greater detail. (v125-7282-7318). Part way through this interrogation the detectives were advised that Rory would have to be returned to jail so that he could be transported to a bond a hearing. (v125-7283-4). At this point, in an effort to get a formal statement, Romagni terminated the interrogation, summoned a court reporter, and began taking a stenographic statement. (v125-7284).
Rory’s formal statement spanned 175 pages. (SR2-360-536). The statement commenced at 11:50 a.m. and terminated at 2:50 a.m. (v126-7354-5).
5. The Confession. (v126-7362-7504; SR3-360-536) After waiving his Miranda rights, (v126-7363-5), Rory told the detectives about his background and family. (v126-7365-6). He stated that after problems developed in his marriage he began using prostitutes from the Tamiami Trail. (v126-7366-7). His wife Carla accused him of cheating and eventually left with their children. Rory blamed himself and the prostitutes for the demise of his marriage and family. (v126-7367).
TABLE OF CITATIONS (continued)
Rory identified a photograph of Lazaro Comesana. (v126-7366-9). Believing Comesana was a female prostitute, he explained how he picked him up, agreed to pay for sex, and brought him back to his apartment. (Id. at 7370-4). Comesana performed fellatio on him until he ejaculated. (Id. 7375-7). While reaching down to grab Comesana’s breasts, Rory realized the prostitute was a man. (Id. 7377-8). Rory was devastated. (Id.). He then got behind Comesana, wrapped his left arm around his neck, and choked him for 15 to 20 seconds. (Id. at 7379). Rory laid Comesana on the floor on his chest, removed his pantyhose, and engaged in anal intercourse with him until he ejaculated. (Id. at 7379-80). Rory then repressed him.
Rory explained that he killed Comesana out of his anger about Comesana’s deception and his belief that Carla and his children had left him because of his use of prostitutes. (Id. at 7380-81). He described kneeling over Comesana’s body for 10 minutes while he blamed him for the loss of his wife and children. (Id. at 7980-81).
He then made the sign of a cross over Comesana’s body. (Id. at 7382).
and drove to the Tamiami Trail area where he placed Comesana’s body. (Id. at 7382-8). Rory returned home feeling extremely paranoid. This lasted several days. He stated that he missed work the following Monday and was a “nervous wreck.” (Id. at 7389-90).
Rory next identified a picture of Eliza Martinez. (v126-7391). He previously had had a few dates with her; she was the next prostitute he saw after Comesana.
xxxi TABLE OF CITATIONS (continued)
anger and anguish he felt from the loss of his wife and family had been growing. (Id. at 7392). He picked up Martinez on Southwest 8th Street. (Id. at 7393). After agreeing on a price for sex, he brought Martinez to his apartment. (Id. at 7395-6). Rory took off his pants and laid on his bed. (Id. at 7397).
clothing and stated that she got undressed. After a couple of minutes of fellatio, Rory ejaculated. (Id. at 7399-74). He stated that Martinez went to the bathroom and came back and sat on the bed. He turned on the television. He then got behind Martinez, put his left arm around her neck, and squeeze for 15 to 20 seconds. (Id. at 7401-2). She did not struggle and fell to the floor.
Rory repressed Martinez. He blamed her for his problems, accused her of killing him, then made the sign of the cross over her and asked for forgiveness. (Id.
7402-4). He stated that he killed her because she took away everything important to him. He then described how he carried her to his automobile and drove to a nearby residential location where he placed her body. (Id. at 7405-8).
Rory next identified a picture of Charity Nava, the next prostitute he saw after Martinez. (V126-7411). He explained how his anger about the loss of his family had mounted but the rage had dissipated after he had killed Martinez. He stated that the rage had built up, again. He described driving to the Tamiami Trail to “cool off.” (Id.
looking for a prostitute. Ultimately, he encountered Nava from whom he solicited sex. After agreeing on a price, Nava got into Rory’s vehicle and xxxii TABLE OF CITATIONS (continued)
went with him back to his apartment. (Id. at 7515-16). After putting on a condoms, Rory had intercourse with Nava for about 10 minutes. (Id. at 7418).
Nava disposed of the condoms in the bathroom and returned to the bedroom.
She laid with Rory for 15 to 30 minutes while they watched T.V. (Id. at 7419). They had sex again. When they finished, Rory continued watching T.V.; Nava listened to music in head phones, ignoring Rory. (Id. at 7420). Rory then described strangling Nava from behind. Nava did not struggle. (Id. at 7424).
Rory stated that he placed Nava on the floor and performed anal intercourse on her for 1 to 2 minutes until he ejaculated. (Id. at 7422). He then leaned over her body and blamed her for his problems. He stated that he decided to kill Nava because she ignored him after their second intercourse. (Id. at 7423).
Rory decided to write on Nava’s back with black magic marker. (v126-7424).
the third homicide. (Id. at 7425). Under this he wrote: “I will call Dwight (a well-known local T.V. news anchor person) C.H.A.N. 10.” (Id. at 7427). Under this he wrote “See If You Can Catch Me.” Under this he wrote “NyR,” meaning his mother, Nadia, and him. (Id. at 7428). Rory said the same things over Nava’s body that he had said to the others. (Id. at 7432). Rory then repressed her.
and drove to a nearby residential area where he placed it. (Id. at 7432-6). Back at his apartment, Rory xxxiii TABLE OF CITATIONS (continued)
discarded the property Nava had left but kept a bee per. (v126-7437-8). He remarked that he cared about Nava but that she had caused him a lot of misery.
Rory stated that after Nava’s murder, he was invited and went to have Thanksgiving dinner with Carla's family. (v126-7439). Carla rejected him and made him feel unwelcome. He became very angry. (v126-7441).
After leaving, Rory stated that he went to the Tamiami Trail to cool down. (Id.
at 7441-2). Here he met Wanda Crawford. (Id. at 7442-3). After agreeing on a price for sex, Crawford got into Rory’s car and went to Rory’s apartment. (v126-7444-6).
After sex, Rory explained that they laid together on his bed for ten minutes. (Id. at 7446-7). They had sex a second time after which Crawford took a bath and Rory watched T.V. (Id. at 7448). After Crawford returned and laid down with Rory, he described grabbing her around her neck with his left arm and squeezing for ten to fifteen seconds. (Id. at 7449). Rory stated Crawford did not struggle.
with Crawford after killing her. (Id. at 7450). He described redressing her, carrying her to his car, and then driving to a different area where he placed her body. (Id. at 7451-4). Rory recalled kneeling over Crawford and verbally blaming her for his problems. (Id. at 7455). Upon returning to his apartment, he stated that he felt the same paranoia that he had felt before.
Rory next identified a picture of Necole Schneider, the next prostitute he had met. (v126-7457). Rory stated that since the last murder his relationship with Carla xxxiv TABLE OF CITATIONS (continued)
7459). Rory was devastated by this.
When he met Schneider, Rory explained that he was not looking to kill anyone.
Once they agreed on a price for sex, Schneider got into Rory’s vehicle and they drove to his apartment. (V126-7460). After sex, Rory felt his anger overwhelm him again.
He then strangled Schneider. He stated that she struggled a little and scratched him on his chest. (v126-7463-4). Rory stated that this took only twenty seconds. He admitted having had anal sex with Schneider after she was dead. (Id. at 7465). Rory verbally blamed Schneider for his problems. (Id. at 7465). He then repressed Schneider, carried her to his car, and drove to a location close to Carla's house where he left her on a grass swale. (Id. at 7466-9). Rory returned to his apartment with the same feelings of despair and paranoia. Once home, he disposed of Schneider’s purse and discarded her fingernails that had broken off. (v126-7472-3).
Rory next identified a photograph of Rhonda Dunn. (v126-7474). He recalled picking her up near the Tamiami Trail. He was not looking for a prostitute. When Rory saw Dunn, she reminded him of Carla. (Id. at 7475-6). After they agreed on a price for sex, Rory brought Dunn to his apartment. He described what she was wearing and again stated that she reminded him of Carla. (Id. at 7479). After they had sex, they watched T.V. on Rory’s bed. (Id. at 7481). They had sex again. Rory explained that after Dunn got up to go to the bathroom, he suddenly went up behind TABLE OF CITATIONS (continued)
neck, and began to strangle her. (v126-7481). Rory explained that Dunn struggled, hitting him on the head with a glass pear from on top of the T.V. (Id. at 7483). The two fell on the floor where they continued to struggle.
Rory stated that between twenty and thirty seconds later, Dunn was dead. (Id. at 7485).
Rory repeated that Dunn had reminded him of Carla. (v126-7487). After she was dead, Rory verbally blamed her for destroying his life. Ultimately, Rory repressed her, took her to his car, and drove to a nearby location where he laid her on the grass. (Id. at 7488-91). Upon returning home, Rory disposed of Dunn’s purse, bee per, and fingernails which had broken off during the struggle. (Id. at 7492-3).
Rory again explained the pain he felt from the destruction of his family and the anger that he protected onto the prostitutes. (v126-7494). He stated that this rage had grown since the last killing and that it leaked when he saw Dunn. (Id. at 7492). He denied choosing these victims and insisted, instead, that they were killed because they happened to be there. (Id. at 7501). Rory stated that he stopped killing after Dunn because his relationship with Carla had improved. (Id. at 7494).
6. Pretrial Proceedings. On July 12, 1995, Conde was charged in a Dade County indictment with six counts of first degree murder. (R1-1-4). 2 He pled not The indictment charged the murders as follows: count I - Comesana; count II - Martinez; count III - Nava; count IV - Crawford; count V - Schneider; and count (continued...)
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guilty. (v37-18). The trial court granted Condes Motion for Severance of Counts.
(R1-65-66; v5-20-24; R4-636-9). Subsequently, the state filed its Notice of Intent to Rely on Evidence of Other Crimes Wrongs, or Acts indicating its intent to introduce evidence of the other five homicides at each of the six murder trials. (R1-81-83).
Conde moved to exclude this evidence. (R4 693-714). The court denied his motion in limine, (v86-3189-3220), but granted his motion to reconsolidate the charges. (R5- 874-81, 887-9, 906-27; v86-3220-7; v87-3272-87). However, upon the state's certiorari petition, the order of consolidation was reversed. State v. Conde, 743 So.2d 78 (Fla. 3rd DCA 1999). Ultimately, Mr. Conde was tried only on Count VI for the murder of Rhonda Dunn.
Around July, 1997, plea negotiations ensued. An agreement was reached that, in exchange for Mr. Condes guilty pleas to the six homicides and multiple charges arising from two additional pending cases, Mr. Conde would be sentenced to consecutive, life sentences without the possibility of parole. (R3-415-16, 426-33).
The state represented that the victims' families, the investigating police agencies, and the Dade County State Attorney had no objection. The trial court also indicated its willingness to accept the plea.
Shortly before the change of plea hearing, the prosecutor advised defense (...continued) VI - Dunn. (R1-1-4).
xxxvii TABLE OF CITATIONS (continued)
change of heart” and withdrew the plea offer. The state then filed Objections to Proposed Sentencing and a motion to refuse the trial judge based on the court's alleged participation in the negotiations. (R3-415-17, 429). At the hearing, after filing a response, (R3-415-17), Circuit Judge Richard Margolius granted the state's motion. (v36-620). Mr. Condes Motion to Enforce the Plea Agreement or to Preclude the State from Seeking the Death Penalty, (R3-426-33, 441-6), was denied by successor Circuit Judge Gerald Bagley. (v41-727-41). 3 Conde moved to suppress his identification, post-arrest statements, and physical evidence seized from his apartment and automobile on various grounds. (R4- 725-35, 767-82; SRi-12-95). The trial court conducted various pretrial evidentiary hearings on these motions and incorporated testimony received in another case against Mr. Conde, Case No. 95-22981, in which these issues were litigated. (v85-3030-3124;
v86-3233-66; SRii-SRiv-96-696). The trial court denied Mr. Condes motion to suppress his post-arrest statements based on violations of the Vienna Convention, (v85-3063), his motion to suppress identification, (v85-3094), his motion to suppress post-arrest statements based on involuntariness, (v85-3123), and his motions to suppress physical evidence seized from his apartment and vehicle. (v85-3123-24; v86- 3266).
plea offer, despite the support of all interested parties, prompted Mr. Condes Motion to Disqualify Prosecutor. (R4-736- 60). The trial court denied this motion. (v85-3025-6).
xxxviii TABLE OF CITATIONS (continued)
Jury selection commenced on September 13, 1999, and concluded on September 28, 1999. (v96-V112). The evidentiary portion of the trial commenced on October 6, 1999, and concluded on October 19, 1999. (v116-v128).
7. Trial. The first three days of trial consisted exclusively of testimony regarding the five uncharged homicides. The first testimony regarding the murder of Dunn was not elicited until day four.
The state elicited DNA evidence connecting Mr. Conde to the homicides. Mr.
Condes objections, and related motions, and renewed motions, to exclude all of this evidence on Frye and other grounds, (R6-985-1057, 1115-34; v114-5965-96; v116- 6037-6113), were overruled and denied. (v114-5996-6008; v116-6113-15).
Regarding Comesana, the state elicited testimony that the body fluid specimens collected from him tested positive for semen. (v119-6588-6602). The state's DNA expert testified that there was a match using both the PCR4 and RFLP 5 DNA profile tests between these specimens and a blood sample from Conde. (v119-6688-93).
PCR” stands for “Preliminary Chain Reaction.” (v119-6681). This test requires less DNA material and can be performed more quickly than other DNA tests but produces a more generalized profile. (Id.) For instance, the “matches” between Mr. Condes DNA and DNA material found on the victims by this technique would occur randomly among Hispanics once in 760 people. (v119-6690-1, 6706).
“RFLP” requires more DNA material and takes longer to perform than PCR but identifies much narrower DNA profiles. (v119-6681-2). The matches between Mr.
Condes DNA and DNA material found on the victims by this technique occurred randomly among Hispanics once in 401,000 people. (v119-6692-5, 6706-7).
xxxix TABLE OF CITATIONS (continued)
Miami-Dade criminal ist Borghi testified that he examined fibers from a red bathroom rug and gray carpeting taken from Rory’s apartment. (v121-6821-8). He identified fibers on Comesana’s black dress identical to fibers from the gray carpeting. (Id. at 6828). Miami-Dade criminal ist Hart testified that he examined the tires from the car Rory Conde had been driving. (v123-7032-6, 7042-50). He testified that there were impressions on Comesana’s body that were “consistent” with having been made by a tire on Mr. Condes car. (Id. at 7051).
None of the specimens collected from Eliza Martinez were amenable to DNA testing. (v119-6605-6). Borghi testified that fibers removed from Martinez’s jeans and sandals matched the carpeting samples from Rory’s apartment. (v121-6829).
The specimens collected from Charity Nava tested positive for sperm or semen.
(v119-6607-14). The state's DNA expert testified that there was a match to Condes blood using both the PCR and RFLP DNA profile tests. (v119- 6695-6, 6706-7).
Borghi testified that fibers collected from Nava’s body matched the carpeting from Rory’s apartment. (v121-6830-2, 6898-6901). Hart testified that, though there was an impression on Nava’s body that appeared to be a tire impression, it was not sufficient to make any comparison to the tires on Rory’s car. (v123-7052-3).
Regarding Wanda Crawford, although her body fluid swabs tested positive for semen, (v119-6616-17), no match was made to Rory. (v119-6709). However, Borghi linked a fiber found on Crawford's clothing to Rory’s apartment. (v121-6832).
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The specimens collected from Necole Schneider tested positive for semen and sperm. (v119-6620-1). The state's DNA expert testified that using the PCR DNA test, a major component of the DNA contained on the cervical swab matched Rory.
(v119-6710).6 Further confirmation could not be made utilizing the RFLP test. (Id.).
Borghi testified that fibers found on Schneider’s body and clothing matched the standards from Mr. Condes apartment. (v121-6832-3). Because a tire impression on Schneider’s right leg was only partial and not detailed, Hart only opined that it could have been made by one of Condes vehicles tires. (v123-7053-6). ME Bell testified about several injuries she sustained which he characterized as “defensive.” The specimens collected from Dunn all tested positive for semen. (v119-6622- 5). A finger nail swab indicated the presence of blood. (v119-6626). Additionally, a piece of base board from Mr. Condes apartment tested positive for blood. (Id. at 6639-41). The state's DNA expert testified that the PCR DNA profile test indicated a match between each of the four swabs taken from Dunn and Conde. (v119-6711- 13). Additionally, the RFLP DNA profile test indicated a match with the vaginal swabs. (Id. at 6715-16). Another state DNA expert testified that the STR (Short Tandem Repeat) DNA test, one even more particularized than RFLP, indicated a match between the blood on the base board and Dunn, and that the likelihood of this Unlike the matches determined through PCR testing on the other victims, because there was a “mixture” of DNA material collected from Schneider, this match could only be narrowed to occurring randomly once in 127 Hispanics. (v119-6711).
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match occurring randomly among Caucasian women was one in 180 billion. (v121- 6872-7). Other state criminalists testified that marks found on Dunn’s body and head were consistent with having been made by one of the tires on Condes car, and a pair of shoes found in his closet, respectively. (v123-7056-63, 7134-7).
Associate ME Rao catalogued some 30 injuries Dunn sustained both before and after her death. Rao characterized several as “defensive.” (v123-7097-7124, 7130-7;
SR2-302-47). She testified that these injuries probably happened within three hours of Dunn’s death but possibly before. (v123-7161-3). Rao identified a broken tooth.
She had no dental expertise and could only date the injury within three or four days of the time of death. (v124-7164-5). Rao could not date the tear on Dunn’s left pink finger nail. (v123-7120-1; v124-7164). Rao testified that the pattern injuries to Dunn’s scalp were consistent with being kicked with a shoe. (v123-7134-7).
The state read Rory’s 175 page confession to the jury. (v126-7362-7504).
Following closing arguments, (v128-7719-7844), the jury returned its verdict finding Mr. Conde guilty of the premeditated murder of Rhonda Dunn. (R7-1218;
v128-7871-2). The trial court denied Mr. Condes post-trial Motion for New Trial
(R7-1249-52; v134-7919).
B. Penalty Phase (v135-v143)
1. Overview. The state asserted the existence of three aggravators: (1) defendant convicted of previous felony involving violence; (2) HAC; and (3) CCP.
xlii TABLE OF CITATIONS (continued)
(R135-7972-6). Mr. Conde asserted, and presented testimony to establish, inter alia, that (1) he had no significant history of prior criminal conduct; (2) the capital felony was committed while he was under the influence of an extreme mental or emotional disturbance; (3) his capacity to appreciate the criminality of his conduct and to conform it to the requirements of law was substantially impaired; and (4) numerous non-statutory mitigators related, primarily, to his family background (including being the victim of physical, emotional, and sexual abuse). (R9-1701-21). By vote of nine to three, the jury recommended the death penalty. (R8-1567; v143-9244-8).
2. State Witnesses. The state presented two witnesses. Detective Richter testified about Mr. Condes robbery, burglary, kidnap ing, and sexual battery offense which occurred subsequent to the charged capital offense but for which he already had been convicted and sentenced. (v135-7991-8045). Assistant ME Rao repeated her trial testimony that Dunn had 30 injuries. (v137-8274). She repeated that the cruise on Dunn’s ear reflected the application of substantial force and that if she had been conscious, it would have been extremely painful. (v137-8275-7). She further testified that it would have taken substantial force to cause Dunn’s broken tooth, (v137-8279), and that Dunn’s defensive wounds were consistent with her crawling away from her murderer. (v137-8282-3). Although Rao claimed that Dunn suffered a painful death,
(R137-8301), she acknowledged that (1) her injuries could have preceded her initial contact with Rory, (2) she could have been unconscious when she sustained these xliii TABLE OF CITATIONS (continued)
injuries, and (3) she may have been strangled for less than three minutes before she died. (v137-8293, 8299-8300, 8304).
3. Defense Witnesses. Mr. Conde presented the testimony of three primary experts: psychiatrist Dr. Fred Berlin, (v141-8808-75), neuropsychologist Dr.
Charles Golden, (v142-8924-9005) and psycho therapist/social worker Olga Hervis.
(v138-8486-8501; v140-8704). Berlin and Golden concurred, without contravention, that Rory did not murder Dunn in a cold, calculated, and premeditated manner. (v141- 8849-50, v142-8976). They further concurred that at the time of Dunn’s murder, Rory’s ability to conform his conduct to the requirements of law and appreciate the gravity of his conduct was substantially impaired. (v141-8845-6; v142-8977). Berlin, Golden, and Hervis agreed that at the time of Dunn’s murder, Rory was under the influence of an extreme mental or emotional disturbance. (v140-8689-95; v141-8844;
v142-8976).
Dr. Berlin, who specialized in sexual disorders, (v141-8808), based his opinions upon an extensive review of background information, interviews of, inter alia, Rory’s father Gustavo and sister Nellie, and a formal interview of Rory. (v141-8815-17). He opined that Rory committed the charged offense amidst a “major depression” with “despondency” and “agitation” that had its roots in chronic emotional and psychological childhood abuse. This was further triggered by the dissolution of Rory’s marriage and family shortly before the first murder. (v141-8818-23, 8826-30).
xiv TABLE OF CITATIONS (continued)
Berlin testified that this “major mental illness” is characterized by a persistent “empty feeling,” (v141-8818), and evinces a profound sense of hopeless ness that ultimately interfere with the person's ability to get help. (v141-8829). Berlin testified that Rory was in a very disturbed state of mind. (v141-8823). He testified that depression can lead to killing. (v141-8834). Berlin distinguished this from the fleet ing depression which many people feel, by virtue of its sustained and inescapable nature.
(v141-8828). Berlin testified that his diagnosis was supported by the statements of people in Rory’s life who spoke about his inattention to appearance and hygiene, weight loss, and his appearance, at times, of being in a trance - sitting in the dark and staring into space. (v141-8818-26).
Dr. Berlin concluded that Rory “snapped” when he learned, while receiving oral sex from Comesana, that this prostitute was a man. (v141-8831-5, 8846). This pushed Rory “over the edge.” Berlin testified that Rory was already in a state of deep despair over the demise of his family. (v141-8835-8). He blamed the prostitutes for having brought this destruction. (v141-8826). He now became preoccupied with his murder of Comesana and the fact that he was a murderer. (Id. at 8835-6). Berlin explained that Rory attempted, unsuccessfully, to dis place these feelings. He concluded that Rory’s sense of reality and his appreciation of the gravity of his thoughts and conduct were obstructed by his extremely disturbed mind. (Id.).
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Berlin testified that Rory’s conduct was not anti-social behavior. (v141-8838- 9). Had this been the case, there would have been a long history of criminal conduct instead of the very finite period of bad acts committed by Conde. (Id.). As further evidence that this was not anti-social behavior, Berlin cited the fact that Rory ultimately cooperate with authorities, admitted his criminal conduct, empathize with the victims' families, and expressed remorse for his conduct. (v141-8841). 7 Dr. Golden based his opinions upon a battery of 7-8 objective psychological examinations he administered to Rory on two dates, and his interviews of Berlin and Hervis. (v142-8924-28, 8981). Although Rory did not appear to have problems with his brain or cognitive abilities, and his IQ was in the normal range, (v142-8929-30), Golden found that Rory’s psychopathic deviancy and social introversion scores were high. (v142-8931-2, 8947-9). Golden explained that this profile reflected a person with severe negative emotions repressed in his subconscious and unable to process emotional stimuli, which leads to an out-of-control response akin to Post-Traumatic Stress Disorder. (v142-8952-4). He further explained that this profile reflected severe psychological trauma in childhood and was consistent with childhood sexual abuse.
(Id. at 8954-5).
Florida psychologist Dr. William Riebsane testified, based on his interview of Rory and others around him, and his administration of the well-recognized Hare Psychopathy Checklist test to Rory, that Rory was neither a psychopath nor a sociopath. (v141-8731-48).
xlvi TABLE OF CITATIONS (continued)
In light of this profile, Dr. Golden explained that Rory sought to create the stable family that he never had as a child through his marriage to Carla and having children. (v142-8956). Rory’s marriage dissolved as a result of his emotional inaccessibility and having turned to prostitutes for sexual satisfaction. (Id.). The breakup drove him deeper into depression and made him more dependent upon the prostitutes for “unconditional love.” (v142-8957-8).
Golden explained that Rory’s pent-up emotions came unhinged when he discovered Comesana was a male. (v142-8959). Thereafter, Rory went through cycle of denying and attempting to repress the earlier murder(s) but being driven to the companionship of the prostitutes, believing that he was getting better and was back in control, but then being overwhelmed by the primitive forces underlying his negative emotions when he subsequently would be with the prostitutes. (v142-8959-63).
Golden explained that not only was Rory not stalking the prostitutes or looking for someone to kill, but he wanted to prove to himself that he was not a murderer and would not kill again. (v142-8960-61). Ultimately, it was Rory’s inability to control these intensely negative emotions that resulted in the subsequent murders. (v142-8961- Olga Hervis' testimony focused on Rory’s familiar relationships. (v138-8534- 9). Hervis' evaluation was based on her in-person and telephonic interviews of Rory’s immediate and extended family in Colombia and the United States, including, most xlvii TABLE OF CITATIONS (continued)
significantly, his sister Nellie, his father Gustavo, and his paternal grandmother Maria Rojas, as well as numerous friends, neighbors, and other relatives. (v138-8540-49).
She also conducted approximately 6 interviews of Rory, totaling 15-18 hours, both individually and together with Nellie, Gus, and Maria. (v138-8533-4; v140-8619-36, 8707). Over the course of four of these interviews, Rory disclosed that from age 6-12, on almost a daily basis, he was sexually molested by his uncle Carlos and Alfredo.
(v140-8619-31).
Hervis concluded that Rory’s relationships were predominantly triangularized,8 marked by dysfunction and unresolved conflict. (v140-8672-7). She summarized the major childhood events affecting Rory emotionally as him having been orphaned;
abandoned; kidnapped; emotionally, physically and sexually abused; the victim of racial discrimination; the center of intense conflict; and subjected to mentally and emotionally unstable caregiver. (v140-8680-82). As a result, Hervis testified that Rory suffered from intense fear and terror, ambivalence in feelings, helpless ness, humiliation, confusion, and social dis association. (Id. at 8683-5). Hervis summarized that Rory’s adolescence was marked by acculturation crisis, rejection, instability, poverty, violence, and unstable caregiver. (Id. at 8686-7). This resulted in Rory feeling Hervis explained that trangularized relationships are ones where, unlike healthy one-on-one relationships in which participants resolve conflicts directly, a person is thrust in the middle of a conflict between two others resulting in the resolution of the conflict being deferred or ultimately never achieved. (v140-8672-7).
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helpless, isolated, abandoned, humiliated, and having low self-esteem. (Id. at 8688).
As a result, Hervis concluded that Rory suppressed his emotions and fell into a deep depression. As his marriage began to deteriorated and the threat of losing his family emerged, Rory became confused, panicked, and ultimately out of control. (Id. at 8690-93). Hervis testified that this led to his “breaking point” at which time he began committing criminal acts, and ultimately murder. (Id. at 8694-6).
Rory’s one-year-older sister Nellie testified about Rory’s life growing up in Colombia. Rory’s mother died of an abortion when he was six months old. (v137- 8322-4). She and Rory moved five times, predominantly back and forth between war ring maternal and paternal grand mothers, before Rory turned 12 and the two moved to the United States. (Id. at 8331-41). Their father, Gustavo, left when they were 2 to 4 years old. They she saw him approximately once per year until Nellie turned 13. (Id. at 8332). Nellie described various incidents involving the emotional and physical abuse of Rory. (Id. at 8347-74). When Rory turned 12, Nellie, Rory, and their paternal grandmother, Maria Rojas, moved to the U.S. to live with Gustavo, his wife Irene, and their children. (Id. at 8382-6). Nellie testified that this household continued to be filled with conflict and violence. (Id. at 8382-6, 8450-1).
Irene described their household differently. Although she admitted some violence and instability, (v137-8205-11), she claimed that she and Rory’s dad attempted to make a good home for Rory and Nellie, that Rory’s dad was loving and xlix TABLE OF CITATIONS (continued)
caring, and that he provided for his children's necessities and did not abuse Rory.
(v137-8216-18).
Approximately 15 other friends, neighbors, coworkers, and family members testified on Rory’s behalf regarding more than 70 proffered mitigating circumstances.
(R9-1701-5) of Rory testified. They testified that Rory never spoke about Colombia or his family. (v135-8052, 8107-8133; v137-8232, 8242; v138-8409). They testified that Rory was a family man and a good dad who loved his two children dearly and whose children continued to love and need him. (v135-8062, 8101, 8139-40, 8154-5;
v137-8175-6, 8235; v138-8405-7, 8474-80). They testified that Rory suffered tremendously when Carla and his children moved out of his home and became very depressed. (v135-8063-8085, 8138). During this time, Rory’s appearance deteriorated, (v137-8180; v140-8661), he lost substantial weight, (v135-8138; v137- 8180; v140-8661), and he was seen crying inexplicably. (v135-8085-6, 8089, 8137-8).
4. Sentencing Order. Following its Spencer hearing, (v146-v148), the trial court entered its Sentencing Order, (R9-1727-51; v149), finding three statutory aggravators - previous felony involving violence, HAC, and CCP; one statutory mitigator - no significant history of prior criminal activity (but rejecting five others including extreme emotional or psychological distress), and finding or rejecting numerous other non-statutory mitigators, but ultimately imposing a sentence of death.
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SUMMARY OF THE ARGUMENTS
I. The trial court erred in denying the defendant's cause challenges to deathprone prospective jurors Groom, William Hernandez, Huby, Owens, and Rolle, and juror Fuentes. They all manifested significant doubt about their abilities to impartially render a penalty-phase recommendation. One was shown to be a liar Mr. Conde was forced to exercise peremptory challenges on them which were then unavailable to strike identified jurors who served in his case.
II. The trial court erred in striking venire person Aguirregaviria for cause.
Her death penalty views were not shown to prevent or substantially impair the performance of her juror duties. Indeed, she specifically stated that she could vote for the death penalty under appropriate circumstances.
III. The circumstantial evidence was legally insufficient to support Mr.
Condes premeditated murder conviction. It failed to demonstrate premeditation or exclude Mr. Condes claim that the murder resulted from a fit of rage and emotion.
IV. The trial court reversible erred by admitting voluminous evidence of five uncharged homicides impermissibly rendering this evidence a feature of the trial. This highly inflammatory evidence was cumulative and unnecessary. The trial court's limiting instructions were ineffectual. The sheer weight of this collateral crimes evidence obscured Mr. Condes defense and denied him a fair trial.
V. The trial court reversible erred in admitting irrelevant and unfairly TABLE OF CITATIONS (continued)
a woman six months following the charged homicide; (B) a police Officer’s warning to Dunn thirty-six hours before her death regarding “the Tamiami strangler;” and (C) Rory’s concealment at the time of his arrest. This evidence, individually and cumulatively, had no tendency to prove any material issue and was highly inflammatory. It only served to deny Mr.
Conde a fair trial.
VI. The state engaged in prosecutorial misconduct during guilt phase opening statement and closing argument. The prosecutor improperly attacked Mr. Condes character, urged conviction based on his commission of uncharged offenses, and disparaged defense counsel. These remarks pervaded all of the prosecutors direct comments to the jury. Ultimately, they denied Mr. Conde a fair trial.
VII. The trial court erred in failing to suppress Mr. Condes confession. The coercive interrogation rendered his confession involuntary. Condes waiver of his right to silence and counsel were not knowingly, intelligently, or voluntarily rendered.
The police failed to honor Condes right to a prompt initial appearance. Finally, Condes interrogation without consulate consultations violated the Vienna Convention.
VIII. The evidence was legally insufficient to establish the aggravators CCP and HAC. The state's circumstantial evidence failed to exclude Mr. Condes reasonable hypothesis that Dunn’s murder was the result of an impulsive act committed by a profoundly emotionally disturbed person which neither intended nor lii TABLE OF CITATIONS (continued)
caused prolonged or heightened suffering.
IX. The trial court erroneously rejected statutory and non-statutory mitigators.
least a preponderance of the evidence established that when Rory murdered Dunn he was under the influence of an extreme mental or emotional disturbance and capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. Additionally, the greater weight of the evidence established numerous other mitigating circumstances including Rory’s history of extreme emotional, physical and sexual abuse; the devastatingly negative effect execution will have on his family including two young children; and the genuine remorse he expressed.
Mr. Conde was denied a fair sentencing hearing as a result of the trial court's erroneous admission of uncharged crimes evidence. This evidence impermissibly supported a recommendation of death based upon bad character and propensity to commit murder. This unfair prejudice was substantially exacerbated by the prosecutors' concluding remarks effectively urging the death penalty because Conde was a serial murderer.
XI. The trial court erred in excluding crucial defense mitigation evidence that Mr. Conde being sexually abused as a child. Exclusion of this evidence denied Mr.
Conde a fair sentencing hearing.
XII. Mr. Condes death sentence is disproportionate to the applicable liii TABLE OF CITATIONS (continued)
and mitigators. This court has reduced other death sentences to life imprisonment under similar circumstances where overwhelming mental mitigating evidence must be weighed against
XIII. Florida’s death penalty statute violates the United States and Florida Constitutions because it (1) does not require notice of aggravating circumstances or specific jury findings regarding the sentencing factors; (2) permit a non-unanimous recommendation of death; (3) improperly shifts the burden of proof and persuasion to the defense; and (4) fails adequately to guide the jury's discretion, thereby precluding adequate appellate review.
ARGUMENTS AND CITATIONS OF AUTHORITY
I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S CAUSE CHALLENGES TO DEATH-
PRONE JURORS FOR WHOM THERE WAS MANIFEST
REASONABLE DOUBT ABOUT THEIR IMPARTIALITY.
a constitutional right to an impartial jury capable of setting aside any bias or prejudice regarding the death penalty and rendering a penalty-phase recommendation based solely on the evidence and law. Overton v. State, No. SC 95404, 2001 WL 1044890 at 9 (Fla. Sept. 13, 2001); see U.S. Const. amend. VI, VIII, XIV; art. I, sections 9, 16, 17, Fla. Const. Accordingly, upon a motion to strike a juror for cause, the trial judge is obliged to excuse the juror “if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Id. A juror live TABLE OF CITATIONS (continued)
should not only be impartial, but should be “beyond even the suspicion of partiality.” O’connor v. State, 9 Fla. 215, 222 (1860). A juror's ability to be fair and impartial must unequivocally be asserted in the record; his inability to make an unequivocal assertion establishes a reasonable doubt about his impartiality. E.g., Henry v. State, 586 So.2d 1335, 1337 (Fla. 3rd DCA 1991). Close cases must be resolved in favor of excusing the juror. Martinez v. State, 795 So.2d 279, 282 (Fla. 3rd DCA 2001). The trial court's error is reversible for an abuse of discretion. See Kearse v. State, 770 So.2d 1119, 1128 (Fla. 2000).
In this case, the trial court erred in denying defense cause challenges for six prospective jurors - Groom, William Hernandez, Huey, Owen, Rolle, and Fuentes - against whom Conde was required to exercise peremptory challenges. (v109-5435-6;
v103-4697, v112-5901; v96-3689, v109-5438; v98-3965, v109-5442; v98-3931, v109- 5444). After he exhausted his peremptories, Mr. Conde was granted, and used, two additional strikes. (v109-5451-3). Conde identified eight sitting jurors he would have struck had his request for additional peremptory challenges been granted. (v112-5902;
(R6-1152-4). Thus, this court is required to reverse if three or more of the jurors Mr.
Conde moved to strike for cause should have been struck. Overton at 8. 1.
Prospective Juror Groom. In his juror questionnaire, Groom wrote that his views on the death penalty were “good.” He wrote that the death penalty should be imposed for “murder” and “rape.” (v99-4153). During jury selection, when TABLE OF CITATIONS (continued)
requested to clarify what type of murder he believed deserved of the death penalty, Groom retorted, “Murder is murder.” (Id.). When asked if he believed, if the jury determined beyond reasonable doubt that Conde had committed premeditated murder, Conde would deserve the death penalty, Groom responded: “Yes, I would.” (Id. at 5154). Groom acknowledged that there were “possibly” some things about Conde, if convicted of premeditated murder, that might cause him to recommend life, but also stated that the possibility was “relatively small.” (Id. at 4155). Groom later expressed his view (though subsequently retracted) that a killing by strangulation is necessarily first degree murder. (v109-5393-6).
Groom, whose two step sons, and half of his neighbors, were police officers, stated on his questionnaire that previously he had never been arrested. (v105-4950).
He corrected this during jury selection, admitting that his wife had had him arrested eight to nine years earlier during their divorce, for breaking into his own home. He claimed she was scheming to obtain the house. (Id.). However, Groom’s criminal record reveals that this arrest was for dis charging a deadly missive into a dwelling.
Additionally, Groom failed to reveal that he also had been arrested for DUI, and on a separate occasion for unlawful possession of alcohol by a minor. (SR1-23-24, 28-31).
The trial court denied Mr. Condes cause challenges based on both Groom’s perjury and proclivity toward the death penalty. (v109-5435-7).
2. Prospective Juror William Hernandez. Hernandez first caught the levi TABLE OF CITATIONS (continued)
trial court's attention because of a facial gesture he made during its explanation of the presumption of innocence. (v103-4686). He told the court, though he was not thinking Conde was guilty, he was concerned about the “stigma” that attached to a defendant charged in six counts of murder. (Id.). When asked if he had any moral, religious, or philosophical views against the death penalty, Hernandez answered “no.” (Id. at 4687). However, in response to a question whether, upon finding the defendant guilty, he would have made up his mind to recommend death or could he wait until the penalty phase, Hernandez indicated that he might have a preconceived notion that the defendant should be sentenced to death. (Id. at 4688). Hernandez further stated that, if he believed Conde had committed six homicides, there was probably nothing the defense could tell him regarding Condes background or life that was going to have any weight with him. (Id. at 4692). He acknowledged that it was “unrealistic” that given these facts, there was any evidence the defense could produce that would lead him to recommend life, that “it would be difficult,” and “highly unlikely.” (Id. at 4693). The trial court denied Mr. Condes motion to strike Hernandez for cause.
(v103-4695-7).
3. Prospective Juror Huey. Mr. Huey stated on his juror questionnaire that “murderers give up their right to live.” (v97-3682). In jury selection he explained:
“[A]none that would be found guilty of taking someone else's life I think gives up lvii TABLE OF CITATIONS (continued)
the evidence of the other five homicides would affect his decision, Huey responded: “I would certainly consider that an aggravating circumstance” and that there would be no way for him to disregard it. (Id. at 3685). Huey repeated that this would be very hard to disregard.
(Id. at 3687). The trial court denied Mr. Condes motions, to strike Huey for cause.
(v97-3689; v109-5439).
4. Prospective Juror Owens. Venireperson Owens stated on her juror questionnaire that she was in favor of the death penalty. (v98-3964). She agreed during jury selection that if there were no reasonable doubt that a person committed a first degree murder, she would automatically vote for the death penalty. In response to the trial court's efforts to rehabilitated her, Owens stated that she “would definitely have to hear everything before [she] agreed to the death penalty” and that she was prepared to “wait and listen to all the mitigating and aggravating factors” before she made up her mind. (Id. at 3968).10 Based on these answers, the court denied the defense challenge for cause. (Id. at 3969).
5. Prospective Juror Rolle Ms. Rolle stated in her juror questionnaire Huey later stated that his view of “an eye for an eye” would not interfere with his ability to sit as a juror. (v97-3687).
This line of rehabilitation, which the trial court repeatedly used, merely established that the venirepersons would wait until all of the penalty phase evidence was in before allowing their bias for death determine their recommendation.
lviii TABLE OF CITATIONS (continued)
that the death penalty should be imposed for “serial” and “cold blooded” killers.
(v98-3926). Rolle explained that, if Conde was shown to have killed the five other women in addition to the charged offense, he would quality as a serial killer. (Id. at 3926-7). She further stated that there was “a possibility” that she would recommend the death penalty for Mr. Conde, “[s]imply as a result of him being convicted.” (Id.
at 3928). Rolle further explained Rolle: I feel like this. With the six, if he just shot, strangled, just grabbed these women and just strangled these women without these women having a chance, just for no reason, yes, I would say death.
Defense counsel: Okay, now, you say with no reason.
Defense counsel: Are you saying that if he had a good enough reason that maybe you wouldn't vote for the death penalty?
Rolle: I wouldn't say that, but I am just saying cold blooded, you know, just catch these women, walk behind them and just strangle them and one by one, to me that is no reason. (Id. at 3930) When asked if the defendant's reason for killing would affect the determination, Rolle stated: “If it was self-defense or his life was on the line or something like that, I would say maybe life.” (Id.). When counsel explained that self-defense was a matter that only would be considered during the guilt phase and asked, again, if Rolle was saying that if Conde “just... killed these people,” she would vote for death, (id.), Rolle responded: “Yes. Because I would want to know why would he kill these people? What did they do to him? And if he just, you know, without a reason, just hate women or, whatever. That is my answer, yes.” (Id. at 3930-1). The trial court denied Mr. Condes motion and renewed motion to strike Rolle for cause. (v98-3931;
lix TABLE OF CITATIONS (continued)
v109-5444).
6. Juror Fuentes Juror Fuentes advised the court that if he were persuaded that Mr. Conde had strangled Rhonda Dunn with premeditation, he would be pre disposed to the death penalty. (v104-4901). He stated he then would place a burden on the defense to justify not giving the death penalty. (Id.). He further explained that evidence regarding Mr. Condes background or how he led his life would not have any weight with him and that he would be unable to consider those factors as mitigating evidence. (Id.).
Regarding the fact that he might hear evidence that Conde killed six people, Fuentes had the following discussion with defense counsel:
Q. If you believe he killed six people you will not be willing under any circumstances to give him life imprisonment?
A. No, if I believe that or even one person for that matter.
Q. I'm sorry?
A. Even one person.
Q. Say that out (sic)?
A. I say, if he kill one person with premeditation, to me that is worth the death penalty. (Id. at 4903).
During the trial court's attempted rehabilitation, Fuentes could only say he thought he could wait to hear all of the evidence in the penalty phase before rendering a recommendation. (Id. at 4903). However, he continued to caution: “But the question with those five other questions (sic) having a bar ing (sic) on your decision, I said that is human nature you couldn't block out complete (sic) regardless but you only trying (sic) on one murder here.” (Id.). He ultimately acknowledged only that he TABLE OF CITATIONS (continued)
would follow the instructions “[t]o the best of my ability.” (Id. at 4904). The trial court denied Condes motions to strike Fuentes for cause. (v104-4905-6; v112- 5900).
The mere fact that some of these venirepersons reluctantly stated, in response to the trial court's skilled attempt to rehabilitated them, that they would follow the law, did not negate their prior, frank statements of strong bias in favor of the death penalty.
As this court reiterated in Overton:
not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias of (sic) prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declared his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?
Overton at 10 (citation omitted).
The above referenced juror and prospective jurors repeatedly expressed their pro-death sentiments even after it was explained that they must wait for the penalty phase to weigh mitigating and aggravating circumstances before arriving at a recommendation. (v96-3506-08; v98-3877-79; v100-4239-41; v103-4805-6). Thus, they were not lacking in “any true insight whatsoever into the elements or factors involved in capital sentencing proceedings” when they expressed their pro-death penalty bias and, for some, an inability to follow the court's instructions. Although some of these venirepersons ultimately stated that they would follow the court's lxi TABLE OF CITATIONS (continued)
instructions, the above referenced remarks were “sufficiently equivocal to cast doubt on” their later statements. Bryant v. State, 656 So.2d 426, 428 (Fla. 1995). Thus, at the very least, reasonable doubt exists whether they could provide Conde a fair trial.
The trial court's failure to strike them for cause constituted reversible error.
II. THE TRIAL COURT ERRED IN STRIKING VENIRE
PERSON AGUIRREGAVIRIA FOR CAUSE WHERE SHE
SPECIFICALLY STATED SHE COULD VOTE FOR THE
DEATH PENALTY UNDER APPROPRIATE
CIRCUMSTANCES.
The Defendant has a constitutional right to a juror, not otherwise unqualified, whose views about capital punishment would not prevent or substantially impair the performance of her duties in accordance with her instructions and her oath. E.g., Art. I, §§ 9,16, 17, Fla. Const. The trial courts excusal for cause is reviewed for an abuse of discretion. Farina v. State, 680 So.2d 392, 398 (Fla. 1996).
The trial court erroneously granted the state's cause challenge of Aguirregaviria.
Although her views on the death penalty were equivocal (V97-3736 (“well, I don't know if I believe in it or not;”“No” in response to question “Do you support it or weighing the evidence, and making a recommendation. (Id.) In response to defense questioning, Aguiregaviria stated she “guess[ed]” she could weigh circumstances and vote for the death penalty in some situations. (Id. at 3738-9). Ultimately, in response lxii TABLE OF CITATIONS (continued)
the question whether she “could... make the recommendation or vote for the death penalty under the appropriate circumstances,” she stated: “Yes, sir, I guess.” Aguirregaviria's sentiments were similar to, and certainly no more equivocal than, those of venire person Hudson in Farina who, said she had “mixed feelings” about the death penalty but would “try” to consider the state's request for the dealth penalty fairly, and was found to have been improperly excused for cause. Id., 680 So.2d at 396-8. As in Farina, this improper ruling requires a new sentencing. See Gray v. Mississippi, 481 U.S. 648 (1987)(exclusion of juror for cause in capital prosecution who is not irrevocably committed to vote against death penalty regardless of facts and circumstances is reversible constitutional error).
III. THE CIRCUMSTANTIAL EVIDENCE WAS
LEGALLY INSUFFICIENT TO SUPPORT MR.
CONDES PREMEDITATED MURDER
CONVICTION.
Premeditation is the essential element which distinguished first-degree from second-degree murder. E.g., Randall v. State, 760 So.2d 892, 901 (Fla. 2000);
Hoefert v. State, 617 So.2d 1046, 1048 (Fla. 1993). Premeditation is a “fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Kirkland v. State, 684 So.2d 732, 734 (Fla. 1996) (citation omitted). Premeditation contemplates an even higher men era than specific intent. See Carpenter v. State, 785 So.2d 1182, 1196 (Fla. 2001). While lxiii TABLE OF CITATIONS (continued)
premeditation may be proven by circumstantial evidence, such evidence must be inconsistent with every other reasonable inference. See id. at 1194. Where the state's proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained.
Randall, 760 So.2d at 901; Kirkland, 684 So.2d at 734; see U.S. Const. amend.
XIV.
The state's evidence of premeditation was entirely circumstantial. Condes confession, fully endorsed by the state and corroborated by other evidence, failed to evince “a fully formed conscious purpose to kill.” To the contrary, it demonstrated that Rory strangled Dunn as a result of an instantaneous combustion of the wrenching emotions he harbored from Comesana’s sexual betrayal of him and his belief that prostitutes cost him his marriage and family. (v126-7366-7, 7380-1, 7441, 7459, 7492- 4). Rory’s chance meeting of Dunn proved to be particularly incendiary because Dunn physically resembled Carla. (v126-7474-6, 7487). There was absolutely no evidence that Rory exhibited, mentioned, or even possessed an intent to kill Dunn prior to the actual homicide. Kirkland, 684 So.2d at 735. When Rory picked her up, he was not even looking for a prostitute. (v126-7475). There was no evidence that Rory had a preconceived plan - he did not have or use any instrument to commit the murder and took no other measures ahead of time to attempt to conceal any criminal act.
Instead, Rory acted suddenly and without warning.
lxiv TABLE OF CITATIONS (continued)
The method of killing, strangulation, was equally or more consistent with a killing committed impulsively in a fit of emotion. See Carpenter (first degree murder by blunt trauma and neck compression reduced to second degree murder); Randall (double strangulation murder reduced to second degree homicide); Hoefert (murder resulting from homicidal violence due to asphyxiation reduced from premeditated to second degree murder). The uncharged homicides, likewise, failed to shore up the state's evidence. See Hoefert (Williams rule evidence that defendant choked four other women in the course of assaults or sexual batteries failed to support premeditated murder conviction). Finally, Rory’s confession supported his claim of second degree murder. Cf. Carpenter (conviction reduced despite defendant's multiple conflicting post-arrest statements including admission that he previously lied to minimize his role in the murder). Thus, the trial court erred in denying Mr. Condes mid-trial and post-trial motions to reduce the charge or his conviction from premeditation to second degree murder. (v127-7645-9, 7659-61).
IV. THE TRIAL COURT REVERSIBLY ERRED BY
ADMITTING VOLUMINOUS EVIDENCE OF FIVE
UNCHARGED HOMICIDES IMPERMISSIBLY
RENDERING THIS EVIDENCE A FEATURE OF
THE CASE AND DENYING THE DEFENDANT A
FAIR TRIAL.
Although Mr. Conde was prosecuted for only one murder, his trial proceeded as if he were charged with six. Victim by victim, the state presented crime scene evidence, victim photographs, DNA evidence, fiber evidence, tire-print evidence, TABLE OF CITATIONS (continued)
medical examiner evidence, and Mr. Condes confession regarding five uncharged homicides. The state presented nine witnesses regarding the murder of Lazaro Comesana;11 seven witnesses regarding Eliza Martinez;12 nine witnesses regarding Charity Nava;13 eight witnesses regarding Wanda Crawford;14 and nine witnesses regarding Necole Schneider. 15 Well more than half the crime scene and autopsy Homicide Detective Estopinan (v116-6173-6201); crime scene officer Byrd (v117-6310-23); medical examiner Bell (v117-6381-6405; v118-6419-20); forensic serologist Hinz (v119-6587-6604); DNA criminal ist Kahn (v119-6688-90); trace evidence specialist Borghi (v121-6821-54); criminal ist and tire tread specialist Hart (v123-7032-6, 7042-52); lead detective Romgani (v125-7285-96); Condes confession (v126-7366-90).
Homicide detective Portilla (v116-6201-16); criminal ist Seriski (v117-6254- 67); medical examiner Bell (v118-6420-33); serologist Hinz (v119-6605); criminal ist and trace evidence specialist Borghi (v121-6821-55); lead detective Romgani (v125- 7296-7303); Condes confession (v126-7391-7409).
Homicide detective Butcho (v117-6268-86); crime scene officer Melgarejo (v117-6358-66); medical examiner Bell (v118-6434-47; forensic serologist Hinz (v119- 6606-13); DNA criminal ist Kahn (v119-6695-6708); criminal ist and trace evidence specialist Borghi (v121-6821-55); crime scene officer Melgarejo (v121- 6894-6900);
criminal ist and tire tread specialist Hart (v123-7052-3); lead detective Romgani (v125- 7304-15); Condes confession (v126-7411-42).
Homicide detective Portilla (v117-6324-7); crime scene officer Byrd (v117- 6322); medical examiner Bell (v118-6447-65); serologist Hinz (v119-6614-17); DNA criminal ist Kahn (v119-6707-8); criminal ist and trace evidence specialist Borghi (v121- 6821-55); lead detective Romgani (v125-7315-18); Condes confession (v126- 7443- Homicide investigator Tymes (v117-6329-37); crime scene officer Melgarejo (v117-6338-53); medical examiner Bell (v118-6466-79); serologist Hinz (v119-6618- 21); DNA criminal ist Kahn (v119-6709-11); criminal ist and trace evidence specialist (continued...)
lxvi TABLE OF CITATIONS (continued)
photographs and other exhibits concerned the uncharged murders. (St. Exs. 2-82;
The state introduced virtually no evidence regarding the homicide of Rhonda Dunn, the victim of the charged homicide, for the first three days of trial. (v116-18).
On the fourth day, after serologist Hinz testified regarding the vaginal, anal, mouth, and finger nail swabs she tested for the other five homicide victims, (v119-6583-6620), she finally testified about the tests she conducted on Dunn’s specimens. (v119-6621-44).
As with the Williams Rule victims, there were approximately eleven witnesses who testified regarding the Dunn homicide. 16 The Florida Evidence Code sanctions the introduction of evidence of uncharged crimes to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Section 90.404(2)(a), Fla. Stat. However, to be admissible, these facts must be material to the state's prosecution. Such evidence is still subject to exclusion if the danger of unfair prejudice substantially out weighs its (...continued) Borghi (v121-6821-55); crime scene officer Melgarejo (v121- 6901-4); criminal ist and tire tread specialist Hart (v123-7052); Condes confession (v126-7457-73).
Forensic serologist Hinz (v119-6621-6, 6638-48); DNA criminal ist Kahn (v119-6711-17, 6723-29); detective Martinez (v121-6783-6803); criminal ist and trace evidence specialist Borghi (v121-6821-55); DNA specialist Dr. Crouse (v121- 6864- 90); crime scene officer Melgarejo (v121-6908-12, 6915-62); detective Luis Estopinan (v122-6963-6986); criminal ist and tire tread specialist Hart (v123-7056-75); associate medical examiner Dr. Valerie Rao (v123-7084-7190); lead detective Romgani (v125- 7198-7272); Condes confession (v126-7457-94).
lxvii TABLE OF CITATIONS (continued)
probative ness. See Steverson v. State, 695 So.2d 687, 688 (Fla. 1997); Henry v.
73, 75 (Fla. 1991); section 90.403, Fla. Stat. This exclusionary rule is implicated when the state's collateral offense evidence is so extensive that it becomes a feature of the trial. E.g., Steverson; Henry.
Evidence of collateral crimes becomes a feature where it has “so overwhelmed the evidence of the charged crime as to be considered an impermissible attack on the defendant's character or propensity to commit crimes.” Bush v. State, 690 So.2d 670,673 (Fla. 1st DCA 1997); Snowden v. State, 537 So.2d 1383, 1385 (Fla. 3rd DCA), rev. denied, 540 So.2d 1210 (Fla. 1989). The mere volume of the evidence does not necessarily make it a feature. Snowden at 1386. The question is whether the collateral crimes evidence has transcended the bounds of relevance See Williams
v. State, 117 So.2d 473, 475-6 (Fla. 1960); Bush at 673; Snowden at 1385 n.3.
The concern with such evidence is that “the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law.” Snowden at 1384 (quoting of uncharged crimes “will frequently prompt a more ready belief by the jury that the defendant might have committed the charged offense, thereby pre disposing the mind of the juror to believe the defendant guilty.” Bush at 673 (citations omitted). It implicated a defendant's right to a fair trial. See U.S. Const. amend. XIV.
lxviii TABLE OF CITATIONS (continued)
the first-degree murder of Bobby Lucas. The state introduced extensive evidence of the defendant's attempted murder of a police detective four days later who, investigating the Lucas murder, located the defendant. Under the theory that the police shooting was “inextricably intertwined” with the murder, the state elicited substantial evidence regarding the police shooting at the defendant's murder trial including the nature of the detectives injuries, the reaction of other officers, and the detectives hospital treatment.
In weighing the danger of unfair prejudice against the probative ness of the challenged evidence, this court directed courts to consider (1) the prosecution's need for the evidence; (2) the tendency of the evidence to suggest to the jury an improper, e.g., emotional, basis for resolving the matter; (3) the chain of inferences necessary to establish the material fact; and (4) the effectiveness of any limiting instruction. Id.
at 689. Additionally, courts must pay particular attention to the extent to which the collateral crimes evidence “inflames the jury or appeals improperly to the jury's emotions.” Id. at 688-9.
example of a proper application of this balancing test, this court cited Henry v. State, 574 So.2d 73 (Fla. 1991). There, this court reversed the defendant's conviction for the first-degree murder of his wife because the trial court admitted excessive testimony concerning the defendant's murder of his wife's son:
lxix TABLE OF CITATIONS (continued)
Some reference to the boy's killing may have been necessary to place the events in context, to describe adequately the investigation leading up to Henry's arrest and subsequent statements, and to account for the boy's absence as a witness. However, it was totally unnecessary to admit the abundant testimony concerning the search for the boy's body, the details from the confession with respect to how he was killed, and the medical examiners photograph of the body. Even if the state had been able to show some relevance, this evidence should have been excluded because the danger of unfair prejudice substantially outweighed its probative value. § 90.403, Fla.
Stat. (1985). Indeed it is likely that the photograph alone was so inflammatory that it could have unfairly prejudiced the jury against Henry.
Id. at 489 (quoting Henry, 574 So.2d at 75).
Relying on Henry, this court reversed Steverson's conviction holding that, though the police shooting had some relevance to the charged offense, “there was no justification for the admission of [the] of extensive details... offered by four different witnesses, all of whom focused most of their testimony on the police Officer’s injuries and recovery.” Id. at 689-90.
In our case, the collateral homicide details were so excessive as to impermissibly transcend any relevance. For each murder the state presented seven to nine witnesses detailing virtually every aspect including (1) the method of murder, (2) the injuries sustained by the victim, (3) the sexual relations between Mr. Conde and the victim both before and after death, (4) the DNA evidence connecting Mr. Conde to the victim, (5) the fiber evidence connecting the victim with Mr. Condes apartment, (6) TABLE OF CITATIONS (continued)
Condes vehicle, and (7) crime scene evidence from the location where the body was found. For instance, though M.E. Bell testified over two days consisting of some 150 pages of transcript, (v117- 6370-6404; v118-6419-6535), he never looked at Dunn’s file. (v118-6482). The state also introduced Condes entire confession describing his contact with each collateral crime victim including (1) how they met (2) their sexual relations, (3) how he killed each victim, and (4) how he removed each victim's body from his apartment and disposed of it. Of Mr. Condes 175 page statement, this comprised approximately 125 pages. (SR3-370-496). 17 The state's need for this evidence was nominal. It initially proffered that it was relevant to prove identity, intent, and modus operandi. (R4-861). Instead, the collateral crimes evidence was unnecessary, and cumulative of other evidence bearing on these predominantly undisputed issues. See Foburg v. State, 744 So.2d 1175, 1176 (Fla. 2nd DCA 1999). Regarding identity, besides Mr. Condes confession that he murdered Dunn, (v126-7474-88), the state introduced DNA evidence which both conclusively linked Conde to Dunn’s body fluids and Dunn to blood discovered in Condes apartment. (v119-6711-16, 6723-29). The state further introduced fiber, tire A more subtle prejudice Mr. Conde suffered was his practical inability to effectively cross-examine the collateral homicide evidence. Any effort to aggressively attack it would have further highlighted it. This resulted in a denial of Condes confrontation and due process rights.
lxxi TABLE OF CITATIONS (continued)
mark, and shoe-print evidence which linked Dunn to carpeting in Mr. Condes apartment, the tires on his car, and shoes found in his closet. (v121-6833-7; v123- 7056-63). Evidence of uncharged crimes to prove identity should only be allowed if necessary, where identity cannot be shown without such evidence. See San Fartello
v. State, 154 So.2d 327, 329-30 (Fla. 2nd DCA 1963).
The excessive and detailed evidence of other crimes also was unnecessary to prove intent. As with identity, this was not a particularly contested issue at trial. Mr.
Condes confession admitted his intent to murder Rhonda Dunn. (v126-7481-7, 7492- 4). The evidence of manual strangulation clearly excluded any theory of “accident.” (v123-7138). The numerous bruises and injuries Dunn sustained at about the time of her death (v123-7106-38) corroborated the other evidence that this was an intentional killing. Rory did not claim self-defense or that Dunn was the initial aggressor. No further proof, and certainly not the details of five uncharged homicides, was necessary to bolster the state's case on this issue.
The state's claim that this evidence of five uncharged murders was necessary to prove modus operandi is illusory. Modus operandi is not an ultimate fact. See (Fla. 1974). It is only relevant where necessary to prove an ultimate fact like identity.
See, e.g., Miller v. State, 791So.2d 1165, 1170 (Fla. 4t h DCA 2001). Thus, any relevance of the collateral crimes evidence to prove modus operandi collapsed into its lxxii TABLE OF CITATIONS (continued)
relevance to prove identity. Since identity was not in dispute, there was no legitimate reason to prove any modus operandi.
The tendency of the state's evidence of five, separate, collateral homicides to suggest an improper, emotional basis for the jury to resolve the material issues at trial was overwhelming. This evidence established Mr. Conde was a serial murderer.
Indeed, in closing argument, the prosecutor argued that Mr. Conde had committed six murders in 117 days, all the same, “like clock work.” (v128-7775). The evidence that Mr. Conde knowingly engaged in homosexual relations with Comesana and had sexual relations with several of his victims after death, (v119-6601-2, 6690-1, 6611-12, 6616- 18, 6690-1, 6706-7; v126-7379-80, 7421-22, 7450, 7464-5), is precisely the type of evidence that would cause a jury to decide a case on an emotional basis. Similarly, the state's evidence that Mr. Conde used Nava’s body like a chalkboard, writing his desperate message to police and the world that he had killed more than once, and taunting police to see if they could catch him, (v117-6277-79), was repulsive. 18 The state presented evidence of the saliva, vaginal, and anal swabs it took from each of the victims of the uncharged homicides. (v119-6601-4, 6611-20, 6690-2, 6696-7, 6706- 10). It introduced numerous victim and autopsy pictures concerning the collateral The state introduced the macabre picture of Nava’s back showing Condes writing: the word “Third!” (indicating this was his third murder), “I Will Call Dwight (a well-known T.V. news anchor person) C.H.A.N. 10,” a pair of eyes followed by “If You Can Catch Me,” and then “NyR,” indicating Nadia (Rory’s deceased mother) and Rory. (SR1-189; v117-6277; v126-7424-8;
lxxiii TABLE OF CITATIONS (continued)
murders including several particularly grotesque close-ups. (SR2-223, 225, 239, 241, 259, 261, 263, 273, 275). It is this type of inflammatory evidence evincing inhumanity and immortality that constitutes an impermissible attack on a defendant's character and would drive a jury to improperly convict based on emotion. See Bush, 690 So.2d at 673; Snowden, 537 So.2d at 1384 (quoting Williams v. State, 117 So.2d 473, 475-6 (Fla. 1960)).
This excessive and inflammatory evidence completely obscured Rory’s defense.
face of this evidence, the jury was incapacitated from evaluating Rory’s well supported claim that his attack of Dunn, an act imminently dangerous, was not the result of premeditation. Instead, it was the result of the instantaneous combustion of the highly charged emotions that emanated from Comesana’s sexual betrayal of him and his belief that prostitutes had cost him his marriage and family. The sheer weight and magnitude of the collateral homicides evidence ensured that the jury would return a verdict finding Rory guilty of the most serious offense. 19 Regarding the effectiveness of any limiting instructions, though the trial court The trial court's reliance on Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982), rev. denied, 430 So.2d 452 (Fla. 1983) (v86-3196, 3212) does not support its decision. There, in addition to evidence regarding the three charged homicides, the trial court allowed evidence of six uncharged murders. Despite this collateral crimes evidence, the jury acquitted the defendant on one of the charged homicides, to which he confessed. Thus, the court's affirmance was based on clear evidence that the jury had not been overwhelmed by the uncharged crimes evidence.
Id. at 617.
lxxiv TABLE OF CITATIONS (continued)
parroted the standard Williams Rule instruction throughout trial as the jury was inundated with the collateral crimes evidence, the instruction could not have staved off the overwhelming prejudice. The instruction was not particularized for this case or the evidence. Instead, according to the state's claim of relevance and the trial court's ruling, the court rattle off all of the conceivable purposes for which uncharged crimes evidence might be considered, e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, lack of accident or mistake on the part of the defendant, without further explanation. Could the court's instruction that the jury could consider the five uncharged murders to prove absence of mistake or accident, issues utterly irrelevant in this case, conceivable protect the jury from its natural instinct to view this incendiary evidence as probative of Condes bad character? Could the court's instruction that the jury could consider five collateral murders to show Mr. Conde had the “opportunity” to kill Rhonda Dunn really shield it from finding guilt based on propensity? Clearly the answer is “no.” The prosecutor exacerbated the unfair prejudice of the collateral homicides during closing argument. It is improper for a prosecutor to focus on a defendant's collateral crimes during closing argument, see State v. Lee, 531 So.2d 133, 137-8 (Fla.
(1988), or argue that a defendant is guilty of the charged offense because of his involvement in prior, uncharged acts or the defendant's bad character. See, e.g., Consalvo v. State, 697 So.2d 805, 813 (Fla. (1997). Nonetheless, during closing TABLE OF CITATIONS (continued)
argument, the prosecutor expertly deployed the Williams rule evidence to urge conviction based on bad character, propensity, and moral indignation. The prosecutor argued that Condes mentality when he attacked Dunn was that she would end up dead “just like the others.” (v128-7797). He argued that Conde killed Dunn just “as he had done with the others,” (v128-7809), and that Conde had gone out “hunting for his victims.” (v128-7822). Thus, the state urged the jury to convict Conde based on its evidence that he had committed the five uncharged murders, thereby negating the effect of the court's cautionary instructions.20 As a final indication of the devastating effect of the uncharged crimes evidence, shortly before the jury returned its verdict, it requested and obtained a copy of Condes confession. (v128-7869; SR3-537-8). Although this confession provided key support to counsel's argument that Mr. Conde was guilty of only second degree murder, (v128-7721-7741, 7750, 7761-4), it also consisted primarily of the sordid details of the five uncharged murders. The jury obviously placed tremendous importance on this diary of a serial murderer. The proximity of the jury's verdict to its focus upon this compendium of collateral crimes speaks volume to the likely impact of this inflammatory evidence.
V. THE TRIAL COURT REVERSIBLY ERRED IN
Mr. Conde maintains that the state's improper remarks during closing argument denied him a fair trail and constitute an independent basis for reversal. See argument VI, infra.
lxxvi TABLE OF CITATIONS (continued)
ADMITTING IRRELEVANT AND UNFAIRLY
PREJUDICIAL EVIDENCE OF (A) RORY’S
AGGRAVATED BATTERY/FALSE IMPRISONMENT OF
A WOMAN SIX MONTHS FOLLOWING THE CHARGED
HOMICIDE; (B) A POLICE OFFICER’S WARNING TO
DUNN THIRTY-SIX HOURS BEFORE HER DEATH
REGARDING “THE TAMIAMI STRANGLER; AND (C) RORY’S CONCEALMENT AT THE TIME OF HIS ARREST.
A. THE GLORIA MAESTRE EVIDENCE.
Over defense objection, the state introduced evidence that on June 19, 1995, more than six months following the homicide of Rhonda Dunn, a woman was discovered locked alone in Condes apartment, wrapped from head to toe with duct tape. (R5-890-92; v118-6536). The prosecutor announced in opening statement, over renewed objection, that Gloria Maestre was found trapped and bound in Condes apartment. (v116-6141-3). The state elicited testimony that, when a pedestrian heard tapping noises coming from the apartment, fire rescue responded, broke down the door, and discovered a frightened woman completely bound with duct tape. (v118- 6537-47). Once freed, the woman identified Rory Conde as her assailant from a picture located on the apartment refrigerator. (v118-6541-42, 6545, 6547).
The state also questioned Dr. Roger Kahn, its expert who examined DNA evidence obtained from the body fluid specimens of the various homicide victims and determined a link between them and Mr. Conde, (v119-6664-71, 6676, 6679-80, 6689- 90, 6696, 6708, 6710, 6711), whether he had received “physical evidence” that had lxxvii TABLE OF CITATIONS (continued)
been taken from Gloria Maestre. (v119-6717). Defense objection resulted in the question not being answered. (v119-6717-20). However, moments later Kahn testified that on June 24, 1995, he advised the lead homicide detective that Rory Conde was a suspect in his investigation. (v119-6720).
Mr. Conde filed a pretrial motion to exclude any evidence of or reference to the jury about the crimes against Gloria Maestre. (R5-892-901). The state urged that this evidence was inextricably intertwined with the charged offense. (v87-3290). The trial court denied the motion. (v87-3289-97). However, it specifically prohibited the prosecutor from elicit ing any testimony of DNA link age between Maestre and Conde.
(Id.). The defense renewed its objection throughout trial.
Hartley v. State, 686 So.2d 1316 (Fla. 1996), cert. denied, 522 U.S. 825 (1997), this court explained the theory of admission for “inextricably intertwined” evidence: “... [E]evidence of other crimes that are ‘inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged,' is admissible under section 90.402 (admissibility of relevant evidence) because it is relevant and necessary to adequately describe the crime at issue.” Id. at 1320.
Professor Charles Ehrhardt describes inseparable acts as those “so linked together in time and circumstance with the happening of another crime, that the one cannot be shown without proving the other.” C. EHRHARDT, FLORIDA EVIDENCE § 404.17 at 208 (2000). He states that this evidence is admissible “where it is impossible lxxviii TABLE OF CITATIONS (continued)
complete or intelligent account of the crime charged without reference to the other crime.” Id. at 209 (citations omitted). Ehrhardt cau tions that this exception to the general rule of exclusion must be narrowly interpreted to ensure it does not swallow the rule. Id. at 210. Like all other relevant evidence, evidence of inseparable crimes must be excluded if the danger of unfair prejudice substantially out weighs any The state argued, and the trial court apparently accepted, that evidence of the discovery of Gloria Maestre, half nude, bound in duct tape, and trapped in Mr.
basis for Condes arrest. (v87- 3290-1, 3296-7). This court has repeatedly concluded that the marginal probity of such evidence is substantially outweighed by the danger of unfair prejudice.
State, 775 So.2d 263 (Fla. 2000), this court has held that hearsay evidence in the form of information learned by a police officer which explains the genesis of the investigation leading to a defendant's arrest is inadmissible and constitutes reversible error. Although the “sequence of events” theory avoid the inherent hearsay problem, this court stressed that “an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case.” Id. at 274 (emphasis added). Accord State v. Baird, 572 So.2d 904, 904 (Fla. 1990); Conley v. State, 620 So.2d 180, 183 (Fla. 1993) (contents of police dispatch report not relevant to establish sequence of events leading to lxxix TABLE OF CITATIONS (continued)
defendant's arrest; reason why officers arrived at arrest scene not material issue).
uncharged crime against Maestre not “so linked together in time and circumstance” with the murder of Dunn that it would have been “impossible to give a complete or intelligent account of [the Dunn murder] without reference to the [crimes against Maestre],” this collateral crime was not relevant to any material issue. The battery and false imprisonment of Maestre occurred more than six months after the murder of Dunn. Moreover, there was no evidence that the crimes against Maestre were in any way similar to the crime against Dunn. Cf. Erickson v. State, 565 So.2d 328 (Fla. 4th DCA 1990) (evidence regarding uncharged sexual assault against second victim was “remarkable similar” to assault on victim in charged offense).
impossible” to prove the murder of Dunn absent reference to the crimes against Maestre. Indeed, as this court's cases leading up to Keen demonstrate, the basis for Mr. Condes arrest was not even relevant to the charged offense. Condes arrest was more than adequately explained (as was done through arresting detective Estopinan) by testimony that the arrest resulted from “follow-up” on “leads” to the person who lived in Mr. Condes apartment (where other evidence established Dunn had been murdered). (v122-6963-71).
Maestre evidence was substantially outweighed by its danger of unfair prejudice. Evidence of uncharged TABLE OF CITATIONS (continued)
Holland v. State, 636 So.2d 1289, 1293 (Fla. 1994). Not only did the state's evidence establish Condes uncharged commission of a battery and false imprisonment, it left the unmistakable inference that Conde had committed a kidnap ing and sexual battery against Maestre. The prosecutor needles sly highlighted this evidence during closing argument. (v128-7806). See Consalvo v. State, 697 So.2d 805, 813 (Fla. 1997), cert. denied, 523 U.S. 1109 of the uncharged crimes against Maestre constituted reversible error.
B. THE TAMIAMI STRANGLER WARNING.
Over defense objection, the state elicited testimony from vice detective Martinez that, approximately 36 hours before the discovery of Dunn’s body, he met with Dunn, who he knew worked alone as a prostitute on the Tamiami Trail. He urged her to stay close to the other prostitutes because there was a person that was strangling the prostitutes in the area. (v121-6784-98). Martinez testified that Dunn refused to heed his warning and only laughed and smiled back at him. (Id. at 6798-9). The prosecutor pre viewed this testimony in his opening statement. (v116-6139).
The state argued that Martinez’s warning was relevant to Dunn’s “state of mind as to whether or not she was aware of the fact that there was such a person out there who was, in fact, assaulting or killing prostitutes and the fact that she somehow ended up with the defendant.” (v121-6785). The state further asserted that the warning was lxxxi TABLE OF CITATIONS (continued)
relevant to “the defendant's demeanor and the manner in which he dealt with these women....” (Id.). The trial court overruled the defense objection based on its determination that the warning was relevant to “the identification of the Tamiami Strangler....” (Id. at 6787-8).
The testimony regarding Martinez’s warning to Dunn was irrelevant. It had no tendency to prove any material issue of fact. See § 90.401, Fla. Stat. Moreover, the danger of its unfair prejudice, reinforcing that the person who assaulted Dunn was a serial murderer, substantially outweighed any conceivable probative value. Section 90.403, Fla. Stat. Accordingly, it should have been excluded.
C. DEFENDANT'S CONCEALMENT AT TIME OF ARREST.
Over defense objection, (v116-6167; v122-6975), the state was permitted to elicit testimony that at the time of his arrest, Rory was found crouching behind a bed as if hiding. (v116-6975). The prosecutor highlighted this evidence, over objection, in closing. (v128-7807). This evidence had no relevance other than to impermissibly suggest consciousness of guilt of the charged homicide. However, Rory’s arrest followed the charged homicide by six months. If it was probative of any consciousness of guilt, it concerned the irrelevant, uncharged crimes against Gloria Maestre. Under these circumstances, this evidence was irrelevant and unfairly prejudicial and its admission constituted reversible error. See, e.g., Escobar v. State, 699 So.2d 988, 994-97 (Fla. 1997); Dailey v. State, 594 So.2d 254, 256 (Fla. 1992).
lxxxii TABLE OF CITATIONS (continued)
VI. THE CUMULATIVE EFFECT OF IMPROPER
PROSECUTORIAL COMMENTS DURING GUILT
PHASE OPENING STATEMENT AND CLOSING
ARGUMENT DENIED MR. CONDE A FAIR TRIAL.
This court explained in Bertolotti v. State, 476 So.2d 130 (Fla. 1985):
The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it must not be used to inflame the minds and passion of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.
remarks because of the office he holds. Thus, he must not strike foul blows and must “refrain from improper arguments calculated to produce a wrongful conviction....” Berger v. United (1998). When such egregious tactics are used which prejudice the defense, a defendant's right to a fair trial is compromised and his conviction must be reversed.
See Ruiz v. State, 743 So.2d 1, 9-10 (Fla. 1999); U.S. Const. amend XIV.
In accordance with these general principles, a prosecutor may not attack a defendant's character. E.g., Gore, 719 So.2d at 1201. A prosecutor also may not conviction based on a defendant's commission of uncharged offenses. See, e.g., Consalvo v. State, 697 So.2d 805, 813 (Fla. 1996), cert. denied, 523 U.S. 1109 may not disparage defense counsel. See, e.g., Lewis v. State, 780 So.2d 125, 130 lxxxiii TABLE OF CITATIONS (continued)
(Fla. 3rd DCA 2001) (reh'g en banc).
Even where all of a prosecutors improper remarks are not objected-to, reversal is necessary where the objected to comments, together with the unobjected-to comments, compromise “the integrity of the judicial process” and result in “convictions and sentences irreparably tainted.” Ruiz v. State, 743 So.2d 1, 7 (Fla.
(1999). Alternatively, such improper remarks, even absent objection, require reversal if they are so prejudicial as to constitute fundamental error. E.g., Caraballo v. State, 4th DCA (1996).
In opening statement, the prosecutor began to condition the jury to view Rory as a serial murderer - an evil person who had murdered six women, not someone merely guilty of the charged offense. He told the jury that police had dubbed Rory “the Tamiami strangler” and that he was “out there killing prostitutes.” (v116-6139).
Under the guise of pre viewing the warning detective Martinez had given Dunn, the prosecutor declared that Rory had murdered “five other prostitutes” by “manually strange[ing them] to death.” (Id.).
The prosecutor referred to Conde as “this strangler,” “their attacker,” “their killer,” (id. at 6140), “the strangler[,]” (id. at 6143), “the Tamiami strangler,” (id. at 6149, 6160 (objection, motion reserved)), and the “man who went out hunting for victims. (Id. at 6157). He referred to the police as “the strangler task force....” (Id.
lxxxiv TABLE OF CITATIONS (continued)
at 6145).
Describing Rory’s confession, the prosecutor exclaimed that Rory “showed.
killed Rhonda Dunn, how he had killed them all,” “[a]bout how fast it was to kill these people,” and “[h]ow easy it was to kill those people.” (Id. at 6150). Concluding this segment, the prosecutor asserted not only that Rory said “I killed Rhonda Dunn,” but also “I killed them all.” (Id. at 6154). Wrapping up, the prosecutor urged that Rory “was going to strangle [Dunn] to death as the other five had been strangled to death.” (Id. at 6157).
During closing argument, the prosecutor repeatedly reminded the jury of Mr.
Condes collateral homicides and urged it to find him guilty based on them. The prosecutor asserted: “Six murders in 117 days and they are all the same. They are all like clock work.” (v128-7775). The prosecutor then called Rory an “adulterer” and a “sociopath.” (v128-7776-7777). 21 Urging that Rory intended to kill Dunn, the prosecutor continued: “He did that six separate times to six different people. You don't think he knew what was going to happen to Rhonda Dunn? You don't think when he put his arm around her neck that he knew he was going to suffocate her just like all the others.” (v128-7782-3). After describing Rory’s struggle with Dunn, the prosecutor argued that Rory intended that she was “going to end up dead this night The trial court ultimately instructed the jury to disregard these two remarks.
(v128-7789).
TABLE OF CITATIONS (continued)
just like the others.” (v128-7797). Further describing Dunn’s struggle, the prosecutor again hardened the uncharged murders: “Ultimately the defendant was able to kill Rhonda Dunn as he had done with the others.” (Id. at 7809).
Turning to Rory’s post-arrest statement, the prosecutor urged that this alone was enough to convict: “If the jury were listening only to the confession, and I am using quote with real big quotes around it, do you think the jury should let a person go when they say, “I killed these people”? Isn't that enough evidence?” (Id. at 7812).
The prosecutor continued to invoke the uncharged murders: “And the truth is that you jurors know what this evidence is. You know the truth about what happened. You know that this defendant went out hunting for victims. That was his thing.” (Id. at 7822). Concluding, the prosecutor again emphasized the uncharged murders: “The defense attorney told you ‘[Rory] killed them, but that is not the point.' Ladies and gentlemen, that is the only point.” (Id. at 7824).
uncharged homicides, the prosecutor unnecessarily reminded the jury about Rory’s uncharged crimes against Gloria Maestre (that were admitted only because they were “inextricably intertwined” with the charged offense):
They haven't caught him yet and then he makes that mistake on June 19th of 1995, and the fire rescue people break open the door and they find inside Gloria Maestre mummified, duct taped head to toe.... They find her duct taped head to toe. They cut the tape off of her mouth although that is a two little air holes in nostrils to life so they cut the tape away....
lxxxvi TABLE OF CITATIONS (continued)
(v128-7806). The defense objection and motion to strike were overruled.
The prosecutor also took shots at defense counsel. Of his cross-examination of Estopinan, the prosecutor argued: “[Defense counsel] is trying to get under Estopinan's skin....” (v128-7799-7800). The prosecutor urged that defense counsel had the same nefarious objective in his cross-examination of Romagni:
down a different road in the hopes that maybe you are not going to pay attention and make the right decision. The defense attorney, in fact, was going to concede, as he did today, I think his words that this defendant took Rhonda Dunn’s life, then what was all of that cross examination about?
(Id. at 7801). The prosecutor then argued that defense counsel had sought to mislead the jury regarding the DNA evidence:
mean, what was the business with who touched these little white pockets. You know, where is Jeff Johnson? Where is the guy who moved the packet from one place to another.
Let me open up one of these pockets. The swabs are here, the blood is here and that is how it is pack aged. And it is put inside of this envelope so it doesn't touch anybody else's blood or swabs. And what is the claim? That the DNA somehow jumped from here to here or from there to there? They have little legs on it and it sort of walks across.
You know that is not true. But without throwing that idea out to you, you know, maybe he is going to convince one person who says, well, maybe the DNA evidence isn't so good. Maybe that is not accurate. Maybe it is not valid evidence that I should rely on.
(Id. at 7801-2).
lxxxvii TABLE OF CITATIONS (continued)
This egregious prosecutorial misconduct, which pervaded all of the prosecutors direct remarks to the jury, irreparably tainted Rory’s conviction. Such attacks on Rory’s character, see Brooks v. State, 762 So.2d 879, 898-900 (Fla. 2000);
n.2 (Fla. 3rd DCA 2000);
Pacifico at 1183; Davis v. State, 397 So.2d 1005, 1008 (Fla. 1st DCA 1981); and attacks on defense counsel, see Lewis, 780 So.2d at 130, Alvarez v. State, 547 So.2d 1119 (Fla. 3rd DCA 1991) were sufficient, individually, to necessitate a new trial.
Unquestionably in combination they require reversal. See Ruiz; Caraballo v. State, 762 So.2d 542 (Fla. 5th DCA 2000).
VII. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
INTERROGATION RENDERED HIS CONFESSION
INVOLUNTARY; (2) HIS WAIVERS OF HIS RIGHTS TO
SILENCE AND COUNSEL WERE NOT KNOWINGLY,
INTELLIGENTLY, OR VOLUNTARILY RENDERED; (3)
POLICE FAILED TO HONOR HIS RIGHT TO A
PROMPT INITIAL APPEARANCE; AND (4) HIS
INTERROGATION VIOLATED THE VIENNA
CONVENTION..
A. Facts The suppression hearing testimony22 established that Rory was subjected to a Mr. Condes motions to suppress statements and evidence are located in volume 1 of the most recent supplemental record on appeal. (SRi). In addition to the various hearings conducted by the trial court in the instant case upon these motions, (continued...)
lxxxviii TABLE OF CITATIONS (continued)
warrant less arrest in his elderly grandmother's apartment by four armed homicide detectives. (SRiii-549-51). They told him they were arresting him for an unrelated sexual battery five days earlier, (SRiii-555), but they had just received information that he was the prime suspect in their six-month-old serial murder investigation. (SRii-111- 17). Their manifest, but undisclosed, intent was to interrogated him regarding the homicide, and obtain a confession. (SRiii-568-70). The detectives entered the apartment without advising Rory’s frail, nervous grandmother of their intentions.
(SRiii-567-70). When the detectives saw Rory kneeling behind a bed in a back bedroom, one detective directed him to freezer and then apprehended him in the hallway of the cramped apartment as he walked toward the door. (SRiii-552-4).
The detectives took Rory directly to the homicide office, bypassing the Dade County Jail where he would have been booked and cured for an initial appearance the next morning. (SRii-217). By noon they had placed Rory in a chilly, 8 by 10, window less interrogation room. (SRii-122-3, 225, 259-60). Rory again was advised that he was under arrest for sexual assault. (SRiii-562). Within minutes the detectives had Rory sign a Miranda waiver, as well as consents to search his apartment and car.
(SRii-121-143; SR2 350-355). They did not tell him the reasons for these consents.
testimony elicited at the motion to suppress hearing in his prior sexual battery prosecution, Case No. 95-22981. (v85- 3058). The testimony, arguments, and ruling on these motions to suppress are also contained in the most recently filed supplemental record on appeal. (SRii-SRiv).
lxxxix TABLE OF CITATIONS (continued)
Additionally, the detectives now knew that Rory had a pending felony case upon which he was represented by an attorney whose business card they had located in Rory’s wallet. (SRii-217-18; SRiii-5604). The detectives made no effort to contact Rory’s attorney. (SRii-217). Finally, though the detectives knew that (1) Rory, a Colombian national, (v85-3041-2), was born in Colombia, (2) he might well be a Colombian citizen, and (3) procedures were in place for contacting national consulates before commencing interrogation of their citizens, they failed to contact the Colombian consulate. (v85-3044-8, 3057-8).
The detectives interrogated Rory for two hours regarding the rape case. Rory steadfastly denied committing the alleged sexual battery. (SRii - 222). Thereafter, the detectives had Conde execute a consent to give saliva and blood specimens. (SRii- 144-8; SR2-298-9). Again, they did not tell Rory why these were needed. The detectives took these specimens. They still had not advised Rory that he was the prime suspect in their serial murder case.
For the next 12 hours Rory was continuously interrogated by a series of interrogators in an effort to get him to confess to the homicides. (SRiii-531). The detectives used a variety of techniques suggested by the FBI for use with serial killers.
(SRii-159, 220-1). They exaggerated and lied to Rory about the strength of their evidence against him. (SRii-227-8, 251, SRiii-510). Detective Jimenez admitted leading Conde to believe that there was a one-on-one DNA match though he knew this TABLE OF CITATIONS (continued)
wasn't true. (SRiii-531). The detectives advised Rory that they were impressed with way he had “fooled” police about his involvement in an attempt to boost his ego.
(SRii-157-9, 225; SRiii-505-10). When the interrogators detected Rory’s sensitivity regarding how this investigation would be perceived by his family, they worked this angle. (SRii-230-2, 248-50). Romagni portrayed himself as Rory’s friend, someone sensitive to Rory’s feelings. (SRiii-528). When one detective was unsuccessful, a “fresh face” was brought in to continue the interrogation. (SRii-166-07; SRiii-537).
The detectives gave Conde customized “Christian burial speeches” advising him that the perpetrator would be portrayed in the press as “a monster” and that he would be “better off” if he “confessed” and “told his side of the story” for the press. (SRii- 229-30, 233; SRiii-526-31).
interrogation terminated, Rory had been in police custody for some sixteen hours and the subject of more than twelve hours of intensive interrogation. (SRii-265-9; SRiii-437-47). He was so emotionally distraught that he cried during the interrogation. (SRiii-505-10). Nonetheless, throughout this entire day's ordeal, Rory did not give any statement implicating himself in the murders. By 2:00 a.m., he had turned his chair away from detective Jimenez and had begun to look down making clear that he wanted the interrogation terminated. (SRiii-538-40). The detectives never advised Rory of his right to an initial appearance before a magistrate by noon the following day, within 24 hours of his arrest. The detectives brought Rory xci TABLE OF CITATIONS (continued)
to TGK, the closest detention facility, to be booked and spend the night. (SRii-167).
Detective Romagni testified that he expected Rory to be brought to his initial appearance later that day and that, when he returned to pick him up, Rory would have invoked his rights. (Id.).
The next day, at approximately 2:00 p.m., detective Romagni and sergeant Jimenez went to TGK to see if Rory would still talk with them. Romagni called and learned that Rory had not been taken to a bond hearing. (SRii-172). The detectives went to get Rory. (SRii-173-4). After elicit ing from Rory that he would still talk, the detectives checked Rory out of the jail and returned to the interrogation room. (SRii- 173-5). Romagni had Rory execute another Miranda waiver. (SRii-175-77; SR2- 358-9). Shortly after the interrogation began, Rory was allowed to call his grandmother, wife, and children on the telephone. (SRii-178-9). These calls lasted approximately 45 minutes. (SRii-179-80). Upon presuming the interrogation, Rory began to confess to each one of the six homicides. (SRii-182).
p.m. on June 26th. (SRii-193). The three hour statement spanned 175 pages of transcript. (SR3-360-536). Following the statement, and further interrogation by detective Richter regarding the Maestre case, Rory was brought to the Dade County Jail to attend his belated first appearance later that morning. (SRii-201- 3). Although detective Romagni testified that Rory agreed to review and verify the xcii TABLE OF CITATIONS (continued)
transcript, (SRii-203), when they approached Rory at the jail following his first appearance hearing, both he and his attorney advised the detectives that he had invoked his right to counsel. (Srii-204).
B. Involuntary Confession Although physical abuse, per se, renders a confession involuntary and subject to suppression under the Fifth and Fourteenth Amendments, see Brown v.
278, 286-87 (1936), it has long been recognized that more subtle forms of psychological coercion also render a confession involuntary. Reck The circumstances detailed above, including Rory’s interrogation in a small, window less, cold, interrogation room; for over 14 hours one day and over 12 hours the next day; without the benefit of a timely initial appearance; by several different detectives on a rotting basis; who lied, exaggerated, received, and used other techniques in an effort to break Rory and extract a confession, rendered Rory’s confession involuntary. (SRi-50-8). See, e.g., Spanno; State v. Sawyer, 561 So.2d 278, 281-82, 285-91 (Fla. 2nd DCA 1990); State v. Madruga-Jimenez, 485 So.2d 462 denied, 450 So.2d 489 (Fla. 1984). Accordingly, the trial court's ruling, (SRiv-681-6), subject to de nov review, e.g., Connor v. State, No. SC93697, 2001 WL1013245 xciii TABLE OF CITATIONS (continued)
at 7 (Fla. Sept. 6, 2001), must be reversed.
C. Miranda waiver not knowing, intelligent or voluntary.
be effective, a waiver of Miranda rights must be knowing, intelligent and Singletary, 30 F.3d 1420, 1426 (11th Cir. 1994); Thompson v. State, 548 So.2d 198, 204 (Fla. 1989). For the same reasons Mr. Condes confession was coerced and involuntary, any waiver of his Miranda rights was not knowing, intelligent, involuntary. For this reason, too, his confession must be suppressed.
D. Failure to provide prompt initial appearance.
In Florida, a felony arrested must be taken before a judicial officer within 24 hours of arrest to be informed of the charge and basic constitutional rights. Fla. R.
3.130. The imperative for a prompt initial appearance also is anchored in the to honor a Florida defendant's right to a first appearance does not necessarily require suppression of any resulting confession, it does where the violation results in an involuntary confession. See Keen v. State, 504 So.2d 396, 399-400 (Fla. 1987). In this case, as argued supra, other factors, in addition to the violation of his rights under Rule 3.130, resulted in an involuntary confession. Had Mr. Condes right to a hearing been honored, it is clear that he would have invoked his right to silence and counsel (as he later did). For this reason, too, Condes confession must be suppressed.
xiv TABLE OF CITATIONS (continued)
E. Violation of Vienna Convention.
The police also violated Mr. Condes rights secured by the Viena Convention by failing to contact the Colombian consulate and by failing to advise Conde of his right to contact the consulate. (R4-767-82). Article 36 of the Vienna Convention, 21 U.S.T. 77; section 901.26, Fla. Stat.(1997). 2 3 Mr. Conde had standing to enforced these self-executing rights. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert.
(2000). Clearly, had Mr. Conde been advised of his right to consulate contact, he would have availed himself of this right and would have, upon proper advice and recommendation, invoked his rights to counsel and silence. Thus, he was prejudiced by the violation of his Vienna Convention rights and his confession must be suppressed.
VIII. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
ESTABLISH THE AGGRAVATORS CCP AND HAC.
A. Legal Standard The state must prove any aggravating circumstance beyond reasonable doubt.
(Fla. 1998); Geralds v. State, 601 So.2d 1157, 1163 (Fla. 1992). Where the state's evidence is entirely circumstantial, it must The June, 2001, amendment to section 901.26 does not affect this argument.
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be inconsistent with any reasonable hypothesis which might negate the aggravating factor. Id. This court must ensure that the trial court correctly applied the rule of law for each aggravating circumstance and, if so, that there is substantial evidence supporting its finding. See Willacy v. State, 696 So.2d 693, 695-6 (Fla. 1997).
To sustain a finding of CCP, four elements must be established:
the product of cool and calm reflection rather than an act prompted by emotional frenzy, panic, or a fit of rage; (2) the defendant had a careful plan or pre arranged design to commit murder before the fatal incident; (3) the defendant exhibited heightened premeditation; and (4) the defendant had no pretense of moral or legal justification.
usually, but not exclusively, applied to ‘those murders which are characterized as execution or contract murders, or witness-elimination murders.'” Mahn, 714 So.2d at 398. Heightened premeditation contemplates “a cold-blooded intent to kill that is more contemplative, more methodical, more controlled than that necessary to sustain a conviction for first degree murder.” Nibert v. State, 508 So.2d 1, 4 (Fla. 1987).
The state failed to prove that Rory’s murder of Dunn was the product of “cool and calm reflection.” The uncontradicted opinion of mental health experts Berlin and Golden was that Rory did not murder Dunn in a cold, calculated, and premeditated manner. (v141-8849-50; v142-8976). As Dr. Berlin explained:
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the time recurrent thoughts and preoccupation about murder and ultimately and tragically gave into those feelings in his disturbed state. But I think this is anything but a man of sound mind who is sitting their coldly and casually reflecting in deciding to take a life the way somebody might, for example, who has got a grudge against the person next door and is clearly in a state of mind where they can rationally come out with a plan that they premeditated and reflected and thought about it.
(v141-8850). Berlin, Golden, and Hervis further concurred that Rory was acting under the influence of an extreme emotional or psychological disturbance which substantially impaired his ability to conform his conduct to the requirements of law and appreciate the gravity of his conduct. (v140-8689-95; v141-8844-6; v142-8976-7).
Rory had been raped repeatedly by his two uncle throughout his childhood.
(v140-8630-1). After successfully depressing the resulting anger and hurt, these intensely negative emotions came unhinged when he realized Comesana, with whom he had just had consensual sexual relations, was a man. (v141-8831-5; v142-8959-9).
This caused Rory to snap and murder Comesana. Dr. Golden explained that, each time Rory subsequently gave in to his addiction to prostitutes, he struggled to prove to himself that he was not a murderer. (v142-8959-61). Ultimately, Golden explained that the primitive forces underlying Rory’s intense and pervasive suffering were beyond his control. (Id. at 8962). See Spencer v. State, 645 So.2d 377, 384 (Fla.
(1994) (evidence offered in support of mental mitigating circumstances negate (CCP);
xcvii TABLE OF CITATIONS (continued)
Santos v. State, 591 So.2d 160, 162-3 (Fla. 1991) (although defendant acquired gun in advance of double homicide of daughter and daughters mother and had made death threats to mother, unrebutted expert testimony established that domestic dispute deranged defendant negating CCP).
These opinions were consistent with Rory’s uncounseled confession which contradicted the state's theory that Rory planned to murder Dunn from his first encounter with her (v128-7773-75). Rory explained the deep anguish and frustration he suffered as a result of Carla having taken his children and left him. (v126-7392).
of his family had built over time. (v126-7411). This was exacerbated when Carla respected him at her family's Thanksgiving gathering, (v126-7439-42), and again in December - weeks before the murder - when Carla told him she no longer loved him. (v126-7459).
When Rory came upon Dunn, he was not even looking for a prostitute. (v126- 7475). Dunn was a lightening rod for Rory’s emotions because she physically reminded him of Carla and generated heightened sexual arousal. (v126-7476, 7479, 7487).
After having had sex with Dunn once, watching TV, and then having sex a second time, Rory stated he laid in bed with her for five minutes. It was not until Dunn got up and walked toward the bathroom that Rory went behind her and began strangling her.(v126-7481-2).This appears to have been the result of an emotional spurxcviii TABLE OF CITATIONS (continued)
of-the-moment decision, not the “cold ness” contemplated by CCP. 24.
Clearly there was no “careful plan” or “pre arranged design” to murder Dunn.
tools or instruments to assist him. Rory apparently had a gun that he easily could have used, but did not. (v135-8010-11). He did not have or use a bag to cover Dunn as he conspicuously carried her over his shoulder to his car. The evidence also failed to establish “heightened” premeditation. Nothing suggests that Rory contemplated and planned this murder ahead of time.
The trial court concluded that the murder of Dunn was “cold,” (R9-1730), based on the state's theory that, in committing this murder, Rory “did not act out of emotional frenzy, panic, or a fit of rage.” (Id.). The court acknowledged that Rory’s confession “was to the contrary” but, relying on Wuornos v. State, 644 So.2d 1000, 1008 (Fla. 1994), cert. denied, 514 U.S. 1070 (1995), rejected his statement as “selfserving and unbelievable because it is contrary to the facts that could be inferred from the similar crimes evidence, or... other facts adduced at trial.” (Id.). The court Rory’s statements regarding his encounters with the other prostitutes also indicated he had no pre arranged plan or heightened premeditation. Rory stated that he killed Comesana because of his deception regarding his gender, which Rory discovered only moments before he killed him. (v126-7380). The mental health experts agreed that upon learning that Comesana was a man, Rory snapped. (v141- 8831, 8835; v142-8959, 8994). Rory stated he did not decide to kill Nava until she ignored him following their second sex act, immediately before Rory strangled her.(v126-7423). When asked about Schneider, Rory specifically responded that he had no intent to kill her when he picked her up. (v126-7459, 7463).
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further stated that Rory’s actions “were spawned by his ongoing separation with his wife, Carla, which did not involve any level of intensity of emotion.” (Id.). The court failed to reference the pertinent, contrary, expert mental health testimony.
The trial court's conclusion that the murder was “cold” is in error for several reasons. First, a murder does not need to be committed “out of emotional frenzy, panic, or a fit of rage” in order to negate a finding of CCP. Instead, any murder that fails to evince “the more contemplative, more methodical, more controlled” type of intent beyond that necessary to sustain a conviction of premeditated murder, fails to establish CCP. Nibert. This court has found CCP unsupported for murders that did not occur while the defendant was in the midst of a frenzy or fit of rage. See, e.g., Almeida v. State, 748 So.2d 922, 932-3) (CCP rejected on facts very similar to the instant case where witnesses testified defendant was calm in hours preceding (murder).
Second, the court was not entitled to reject Rory’s confession. Uncontroverted factual evidence cannot be rejected unless it is contrary to law, improbable, untrustworthy, unreasonable, or contradictory. Walls v. State, 641 So.2d 381, 390 (Fla. 1994), cert. denied, 513 U.S. 1130 (1995). This rule applies even to a defendant's self-serving testimony. See Brannen v. State, 94 Fla. 656, 661-2, 114 So. 429, 430-1 (Fla. 1927). Here, Rory’s uncounseled confession, endorsed and presented by the state, was utterly uncontroverted. It was internally consistent.
Contrary to the trial court's assertion, it was consistent with the Williams Rule TABLE OF CITATIONS (continued)
evidence and the other significant facts adduced at trial25. Contrary to the state's speculation, Rory’s confession reflected that his murder of Dunn and the others was the result of “emotional frenzy” or a “fit of rage” that built during the weeks between murders and overwhelmed him at the moment he strangled Dunn. 26 (v126-7380, 7392,
7404, 7411, 7441, 7459, 7492).
The trial court's assertion that Condes actions “did not involve any level of intensity of emotion” is also unsupported. In addition to those portions of Rory’s confession reflecting frenzy and rage, the mental health experts gave uncontroverted testimony that Rory suffered from a major depression with “despondency [and] agitation,” (v141-8826); Rory struggled mightily following the first murder to dis place Without knowing the details of the evidence in the hands of the police, Rory admitted many of the most morally and legally incriminating facts which were later corroborated by physical evidence. Rory admitted post-mortem anal intercourse with Comensana. (v126-7379-80). This was corroborated by the physical evidence. (v119- 6690). He admitted stealing back the money he had paid the victims for sex, as well as a bee per from Nava and other physical property. (v126-7416, 7437-9, 7451, 7494).
This, too, was corroborated by other evidence. (v117-6305-10). Rory admitted stuff ing garments and other items under the clothing of several victims. (v126-7405, 7432). This was subsequently corroborated. (v116-6209-10 SR1-187-195). He admitted struggles with Schneider and Dunn, (v126-7463-4, 7482-86), which were both corroborated. (v118-6468-78). Romagni, Rory’s primary interrogators, testified that he does not believe Rory would have lied in response to additional questions had they been asked. (v127-7634).
Wuornos fails to support the trial court's rejection of Rory’s confession.
There, unlike here, the defendant had given several post-arrest statements that materially contradicted each other. Id., 644 So.2d at 1003-4, 1009. Additionally, unlike the instant case, the defendant's confessions were “largely controverted by the facts of the murder and the similar crimes evidence....” Id. at 1009.
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committed the murders. (v142-8961-2). As Dr.
Berlin explained, Rory’s condition was far worse than the “feelings of sadness” or momentary depression that healthy people experience. (v141-8828-9).
In addressing the “calculated” element, the trial court appears to have relied exclusively on the similar crimes evidence to support its finding that “Dunn’s murder was the product of a careful plan or pre arranged design....” (R9-1731). However, a finding of CCP may not rest exclusively on collateral crimes evidence. See, e.g., Crump v. State, 622 So.2d 963, 972 (Fla. 1993). Thus, the trial court's reliance on this evidence was error.
Finally, the trial court opined that “heightened premeditation” “ha[d] been established by the very manner of this killing.” (R9-1731). This court has rejected CCP as an aggravating circumstance in other cases involving strangulation. E.g., Hoskins v. State, 702 So.2d 202, 204, 210 (Fla. 1997); Crump v. State, 622 So.2d 963, 967, 971, 972 (Fla. 1993); cf. Carpenter v. State, 785 So.2d 1182, 1185-7, 1196- 7 (Fla. 2001) (evidence insufficient to establish premeditation where defendant hog tied victim who died of neck compressions); Randall v. State, 760 So.2d 892, 894-5, 901-2 (Fla. 2000) (evidence insufficient to establish premeditation for two homicides where victims died of strangulation). Thus, the manner of the killing was insufficient cii TABLE OF CITATIONS (continued)
to establish CCP.
As explained above, neither the similar crimes evidence nor Condes confession proved beyond reasonable doubt that Dunn’s murder was committed by premeditation above and beyond that required to support the homicide conviction. This evidence failed to negate the substantial defense evidence that the murder was committed by a profoundly emotionally disturbed person, incapable of cold reflection, who had become overwhelmed by intense despair that his life had been ruined by prostitutes when he killed Dunn. Accordingly, the trial court's finding of CCP cannot be sustained.27
C. HAC
In State v. Dixon, 283 So.2d 1 (Fla. 1973), this court defined HAC:
It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies–the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
Accord Hartley v. State, 686 So.2d 1316, 1322 (Fla. 1996), cert. denied, 522 In its Sentencing Order, the trial court asserted that even if its finding of HAC were reversed, it still would have found that the aggravators outweighed the mitigators.
(R9-1750). By implication, any error in the trial court's finding of CCP was clearly prejudicial.
ciii TABLE OF CITATIONS (continued)
only proper in torturous murders–those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.” Cheshire v. State, 568 So.2d 908, 912 (Fla. 1990). Although this court has held that death by strangulation is nearly per se heinous, Hitchcock v.
685, 692 (Fla. 1990), this is only when it has been established that the victim was conscious when strangled to death. See Overton v. State, No. SC 95404, 2001 WL 1044890 at 20 (Fla. Sept. 13, 2001).
In the instant case, the state's evidence made it no more likely than not that Dunn was conscious when she was strangled. Associate medical examiner Rao testified that any one of the blows causing injuries to Dunn’s head probably rendered her unconscious. (v124-7169-70). Rao was unable to determine the order in which these injuries were inflicted but did testify that they were inflicted while she was alive.
(v137-8276-7). Thus, if any one of these blows rendered Dunn unconscious, she was not conscious of being strangled. Even without these blows, medical examiner Bell testified that, if the blood supply to a victim's brain is cut off during strangulation, the victim loses consciousness in as little as a few seconds, but on average within six seconds. (v117-6398-6401). He further testified that there is no way to determine whether, in a particular case, this has occurred. (Id.) Thus, there was substantial evidence supporting a reasonable hypothesis that Dunn was unconscious, or only civ TABLE OF CITATIONS (continued)
briefly conscious, at the time she was strangled. See Deangelo v. State, 616 So.2d 440, 442-3 (Fla. 1993) (upholding trial court's rejection of HAC in strangulation case where evidence of victim's consciousness at time of strangulation was equivocal).
There was no evidence indicating that Mr. Conde had a “desire to inflict a high degree of pain” or an “utter indifference to or enjoyment of the suffering” of Dunn.
the contrary, Rory’s uncounseled confession reflects that when he became overwhelmed with the impulse to kill, he acted quickly. (v126-7378-9, 7382, 7401- 2,7423-4, 7463-4, 7481-5). See Donaldson v. State, 722 So.2d 177, 186-7 (Fla. 1998);
Buckner v. State, 714 So.2d 384, 390 (Fla. 1998). There was no mutilation or torture.
Indeed, despite the violent nature of his crimes, Rory’s statement reflected concern for the dignity of his victims, apologizing and praying over their bodies, carefully redressing them, and then placing their bodies in conspicuous, well traveled places where they would quickly be discovered. (v126-7381-2, 7402-3, 7430-32, 7465-6, 7488; v141-8826; v142-8961-2). Dr. Berlin, who had specific expertise in sexual disorders, (v141-8808), testified that Rory was not a sexual sadist and did not receive pleasure from the pain, suffering, or degradation of others. (v141-8850-1).
the trial court appeared to be persuaded that Dunn suffered a prolonged and painful death. The court cited the medical examiner testimony that “the victim struggled to breath and was unable to do so because of the force on the neck which took a few minutes.” (R9-1729). To the contrary, the medical examiner TABLE OF CITATIONS (continued)
testimony reveals that Dunn probably was rendered unconscious before any such suffering by one of the blows to her head or the arrest of blood flow to the brain.
(v117-6398-6401; v124-7169-72). The testimony established that the on-set of unconsciousness would have been quick. (v117-6398-6401).
The court also pointed to the fear it asserted Dunn must have felt as evidenced by the intensity of her struggle and the fact that she had been warned several days earlier about prostitutes having been murdered. (R9-1729). Contrary to the judge's conclusion, it appears that Dunn was resolute in her belief that she was in no danger.
She rebuffed the police warning. (v121-6798-9). Regarding the struggle before her death, the evidence was highly equivocal. Although Dr. Rao testified that several of Dunn’s injuries were “consistent” with being defensive, she admitted that several of these injuries occurred prior to one day before Dunn’s death. (v123-7160; v124-7177).
the rest, she could only say that they “probably” occurred within three hours of Dunn’s death but possibly before. (v123-7161-3). Thus, Dunn could have sustained some or all of these injuries before she even met Rory. 28 Rao also could not determine the order in which these injuries were inflicted or how quickly they were inflicted and admitted that it was possible that many of these injuries could have been Co-lead detective Butchko testified at the Spencer hearing that Dunn’s father reported that Dunn had been a prostitute since age 12 and that she had a violent relationship with an alcoholic boyfriend at the time of her murder. (v146-9291-3). The trial court ultimately sustained the state's hearsay objection to this testimony, (v146- 9295), which Mr. Conde maintains was error, as well.
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sustained simultaneously. (v137-8293, 8299-8300). This is consistent with a short struggle.
Rory’s confession indicates that any struggle was very brief, twenty to thirty seconds. (v126-7485). The combination of cocaine and cocaine metabolites in Dunn’s system, as well as cold medicine, (v124-7182-3), suggest that Dunn’s sensitivity to any fear was significantly pulled. At bottom, the trial court's belief that Dunn may have experienced fear at the time of her death was based on sheer speculation which cannot serve as a basis for finding HAC. See Knight v. State, 746 So.2d 423, 435 (Fla. 1999); Hartley, 686 So.2d at 1323-4. Accordingly, the trial court's finding of HAC cannot be sustained.
IX. THE TRIAL COURT ERRONEOUSLY REJECTED
STATUTORY AND NON-STATUTORY
A. Legal Standard A sentencing court must find the existence of any and all statutory or nonstatutory mitigating circumstances that are “reasonably established by the greater omitted). “Whenever a reasonable quantum of competent, uncontroverted evidence cvii TABLE OF CITATIONS (continued)
of mitigation has been presented, the trial court must find that the mitigating circumstance has been proved.” Spencer v. State, 645 So.2d 377, 385 (Fla. 1994).
mitigator or unless “the record contains competent substantial evidence to support the trial court's rejection.” Id.
B. Extreme Emotional or Psychological Disturbance.
Mr. Condes three primary mental health experts - Berlin, Golden, and Hervis - unanimously opined that Rory was under the influence of an extreme mental or emotional disturbance when he murdered Dunn. (v140-8689-95; v141-8844; v142- 8976). The state offered no contrary testimony.
The trial court rejected this statutory mitigator. (R9-1733-8). The court ignored Dr. Golden’s major opinions, acknowledging only that he interpreted Rory’s personality tests as showing Rory was “depressed” at the time he murdered Dunn and the other five victims. (Id. at 1733). The court acknowledged Dr. Berlin’s conclusion that Rory was “in the midst of extreme mental and emotional disturbance” at the time of the murder and was “in the throws of a major depression...” (Id. at 1733-4). The court further acknowledged Berlin’s opinion that Rory “snapped” when he learned that his first victim was a man and that the subsequent murders were “the result of an irrational mind that cluded and distorted his judgment.” (Id.). The court also acknowledged Hervis' opinion that Rory suffered “from post traumatic stress disorder and depression” and “suffered an emotional and mental collapse because of his cviii TABLE OF CITATIONS (continued)
negative self-concept that resulted from his dysfunctional family life....” (Id. at 1734). Nonetheless, the trial court rejected all three of these experts' opinions.
Regarding Dr. Golden’s opinions, the trial court appears to have rejected them because (1) Rory’s IQ was in the normal range; (2) Rory held down two jobs, established meaningful relationships, and supported his two small children at the time of Dunn’s murder; (3) Rory was not clinically depressed when Golden evaluate him in jail four years after the murder; and (4) Rory told Golden that he did not believe he was depressed at the time of the murders. (R8-1734-5). None of these reasons provides a “competent” or “substantial” basis to reject Golden’s opinions. See Spencer,
Regarding Rory’s IQ score, there was no testimony that this was inconsistent with the extreme emotional or psychological disturbance which Golden testified affected Rory at the time of the murder. Regarding Rory’s ability to maintain the appearance of a normal existence such as working two jobs and taking care of his children, Golden testified that Rory’s profile was one of a person who suppressed negative emotions in his subconscious and that he had developed a protective mechanism by which he would deny the existence of the traumatizing events. (v142- 8954). Regarding the fact that Golden did not find that Rory was clinically depressed after four years in jail, Golden explained that, indeed, Rory was, and would likely continue to be, a model prisoner. (v142-8969). He testified, in essence, that Rory cix TABLE OF CITATIONS (continued)
functioned better in the highly structure prison environment and was unlikely to succumb to depression in prison. (Id. at 8969-71). 29 Finally, regarding Rory’s denial that he was depressed at the time of Dunn’s murder, this is consistent with the observations of several of the mental health experts that Rory tended to suppress or minimize negative, painful feelings in his life. (v140- 8630; v142-8935). As Dr. Golden testified, the far more persuasive evidence of Rory’s psychological state at the time of the murders was his own description of his symptoms: trouble sleeping, loss of interest in things he did, and decreased interaction with others. (v142-8991-2). Moreover, numerous other witnesses testified to Rory’s appetite/weight loss, (v135-8138; v137-8180; v138-8413; v140-8661), inexplicably crying, (v135-8085-6, 8089, 8137-8), and loss of attention to personal hygiene, (v137- 8180-1; v140-8661), all of which corroborated the existence of a major depression. 30 Thus, the trial court erred in rejecting Dr. Golden’s opinion.
The trial court rejected Berlin’s opinions because (1) the court opined that most people suffering from depression do not kill; (2) Rory was not clinically depressed Dr Michael Radelet, chairman of sociology at the University of Miami and an expert in penology, testified that Rory’s profile reflects an “overwhelmingly strong chance” of successful prison adjustment. (v141-8769-82).
William Ferra, Rory’s friend since age 14, testified that Rory was depressed when Carla moved out and would no longer talk with him. (v135-8047-9, 8063-4).
Susana Gomez, a friend of Nellie Conde, testified that Rory became depressed when Carla left him. (v137-8241). Coworker Meadows told Rory to seek counseling.
(v137-8185).
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when interviewed in jail; and (3) Rory was not in need of treatment for depression.
(R9-1735). The trial judge's assertion that depressed people do not kill was purely a matter of personal opinion, completely unsupported by record evidence. In fact, Berlin compared Rory’s depression to post-partem depression which in documented cases leads to the killing of an infant. (v141-8834). Berlin also distinguished gardenvariety depression from the major mental illness from which Rory suffered. (v141- 8828-9). As noted above, Dr. Golden explained why the fact that Rory was not clinically depressed several years after the murders was fully consistent with Rory having been depressed at the time of the murders. Since Berlin did not believe Rory was currently suffering from depression, it is not surprising that he saw no need for treatment. (v142-8971 (Golden believed therapy would assist Rory)). Thus, the trial court also erred in rejecting Dr. Berlin’s opinion. 31 The court rejected psycho therapist Hervis' opinion based on doubts about “the reliability or truthfulness of the information or witnesses that she relied upon....”
(R9-1735). The court claimed that the information she received by telephone from family members, friends, or former neighbors, without “meeting” them, was “conflicting” and “uncorroborated.” (Id. at 1735-6).32 Without specifying which Mr. Conde submits that the extreme emotional or psychological disturbance should have been found based on either the opinion of Dr. Golden or Dr. Berlin.
This criticism, besides unfounded, is ironic. Although Conde moved to (continued...)
cxi TABLE OF CITATIONS (continued)
information or witnesses the court questioned, it rejected Hervis' lengthy, detailed testimony in its entirety. (Id.).
Contrary to the trial court's assertion, the information upon which Olga Hervis based her opinions was substantially corroborated and reconcilable. That Rory grew up “in... home[s] filled with horrible fights [and] violence,” (R9-1736), was confirmed by information provided to Hervis by Nellie Conde, (v138-8553), Gustavo Conde, (v139-8563-4), Nurias Meralda (a neighbor from Colombia), (v139-8566-7), and Luis Fernando (a relative from Colombia). (v140-8605). Nellie Conde also testified that Rory was beaten as a child in Colombia. (v138-8449-50). The existence of “violence or conflicts between [the] two grand mothers” during Rory’s childhood in Colombia was supported by the testimony of Nellie, (v137-8341), and information Hervis obtained in person from the paternal grandmother, Maria Rojas. (v138-8560).
The information Hervis obtained from Luis Fernando that Inosencia, the maternal grandmother, would beat Rory, (v140-8606), was specifically corroborated by direct testimony from Nellie. (v137-8348). That Rory was “emotionally abused” throughout his childhood as a result of being (1) discriminate against based on his skin color, (v137-8350; v138-8451; v140-8605); (2) threatened by the family's chained dog, (...continued) continue the penalty phase due to Hervis’s inability to interview certain Colombian witnesses in person (because of political unrest in Colombia), and his inability to secure the presence of certain Colombian witnesses, (R7-1297-1303; v133-7912-15;
v135-7956), the trial court denied his motion. (v133-7915; v135-7956).
cxii TABLE OF CITATIONS (continued)
(v137-8349); and (3) isolated from friends and neighbors, (v137-8347; v139-8566;
v140-8600), was also fully corroborated.33 The trial court implied that Hervis was unjustified in accepting Rory’s confession that he had been sexually abused as a child, (R9-1736), and rejected this finding itself. (R9-1743-4). The record shows, however, that the sexual abuse allegation was both credible and corroborated. Hervis, a seasoned psycho therapist and social worker with impeccable credentials, (v138-8486-8500), suspected Rory had been sexually abused as a child based on the information she had gathered. (v140- 8622). She described the difficult process of the four meetings over which Rory slowly came to admit this terrible secret from his childhood culminating in the meeting on November 30, 1999, during which, while crying uncontrollably and shaking from head to toe, Rory disclosed that from age 6 to 12, on an almost daily basis, his uncle Carlos and Alfredo took turns sexually molesting him both anally and orally. (v140- 8619-31).34 Hervis testified that in 30 years of practice she had never witnessed anybody react as Rory did while admitting the sexual abuse. (v140-8631).
Rory’s allegation of sexual abuse was substantially corroborated. Nellie testified that Rory and Alfredo slept in the same bed during this time. (v138-8366-7). Meralda, An especially poignant story concerned the pig that Rory’s family adopted as a pet for Rory which he later learned he was fed for dinner. (R140-8628-9).
The trial court's assertion that Rory claimed he was only sexually abused by his uncle Alfredo D'Andres (R9-1736) is belied by the record. (v140-8630).
cxiii TABLE OF CITATIONS (continued)
the neighbor, told Hervis that her grown son had confessed to her that Alfredo had sexually molested him. (v140-8595-6). Other neighborhood boys had said that they, too, had been molested. (v140-8599). Drs. Berlin and Golden testified that childhood sexual abuse was consistent with their diagnoses and conclusions regarding Rory’s mental state at the time of Dunn’s murder. (v141-8833, 8857; v142-8954-5). Dr.
Golden also testified that Rory came close to admitting the sexual abuse to him.
(v142-8966-7). Finally, the claim of sexual abuse was corroborated by Chaplain Bizarro whose testimony, which the trial court excluded from the penalty phase on Richardson grounds, (v140-8579-89) established that Rory had confided the sexual abuse allegations to him beginning in 1995. (v140-8579-80; v142-9014-22).
In rejecting Hervis' testimony regarding the sexual abuse, (R9-1736), the trial judge once again substitute his personal opinion for uncontroverted expert opinion.
The court also ignored the uncontradicted testimony that Carlos had kidnaped Nellie and Rory from their paternal grandmother Maria and delivered them to the home of his violent mother Inosencia. (v137-8335-8). The trial claimed, in essence, that Rory’s uncle could not have sexually abused Rory because he “absolutely loved [Rory] and treated him like a ‘golden child.'” (R9-1736). Hervis explained, however, that it is typical for a perpetrator of child sex abuse to show favor to his victim. (v140-8632).
The testimony and information regarding the “emotional, physical and verbal abuse and rejection of [Rory]” during his adolescent years, (R9-1736), was also fully cxiv TABLE OF CITATIONS (continued)
corroborated. Several sources provided information about fighting and violence in the home of Gustavo and Irene (Rory’s step-mother) where Rory lived in the United States. (v138-8383, 8386; v140-8642-3). Nellie testified that Irene tried to beat Rory.
(v138-8451). Even Irene, who the trial court found to be particularly worthy of belief,
(R9-1743), testified to various acts of violence and fighting in her home. (v137-8207, 8211, 8213-14). Ultimately, because of this conflict, Nellie and Rory’s grandmother Maria were forced out of the house. (v137-8206-7).
an effort to contradicts this information, the trial court cited Rory’s relative success as an adolescent - not using drugs or alcohol, not breaking the law or disobeying his father, and doing well in school. (R9-1736-7). 35 As Hervis explained, however, Rory was able to maintain a veneer of normalcy only by suppress ing his emotions, (v140-8632-3, 8688-9); Dr. Golden similarly explained that denial and repression are protective mechanism by which persons like Rory can continue to function. (v142-8954). These coping mechanism failed when Rory’s family life with Carla and his children began to disintegrate. (v140-8693-5).
opinion that Rory was amidst an emotional break down when he murdered Dunn, the trial court also relied on Rory’s ability as an adult to maintain Although the trial court discredited Hervis for her reliance upon unreliable or untrue information and witnesses, (R9-1735-6), the court plainly relied on some of this very same information (“the defendant's father told Ms. Hervis...”) to sketch its roy picture of Rory’s upbringing. (R9-1735-6,1743).
TABLE OF CITATIONS (continued)
employment, marry, and become a father. (R9-1737-8). Hervis, however, fully accounted for this information in her assessment, (v140-8689-95), as did Drs. Berlin and Golden in reaching their conclusions, that Rory suffered from an extreme mental or emotional disturbance at the time he murdered Dunn. (v141-8827, 8862, 8871-4;
v142-8954-7).
Ultimately, the opinions of Berlin, Golden, and Hervis, that Rory suffered from an extreme emotional or psychological disturbance at the time of Dunn’s murder, were based on credible and corroborated factual information. Their opinions were internally consistent and consistent with each other. The record does not contain competent, substantial evidence to reject these opinions. See Spencer,
Accordingly, the trial court erred in rejecting this statutory mitigator.
C. Defendant's Capacity to Appreciate the Criminality of his Conduct or Conform Conduct to the Requirements of law Substantially Impaired.
The defense mental health experts also testified that at the time Rory murdered Dunn, his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. (v141-8845-7; v142-8977). On this point, too, the state offered no contrary testimony.
the portion of its Sentencing Order rejecting this statutory mitigator, the trial court relied, again, upon the fact that Rory “was not found to be depressed at the time of his interview by both experts [and]... was not in need of treatment for cxvi TABLE OF CITATIONS (continued)
depression.” (R9-1739). The court also relied upon Rory’s appearance of normalcy in working hard at two jobs and supporting his family. (Id.). For the reasons explained supra, these factors do not provide a competent or substantial basis to reject Golden’s or Berlin’s opinions. (v142-8954, 8969-71).
The trial court concluded that Rory’s conduct in manually strangling the victims, re-dressing them, and leaving a message on Nava’s body showed that he was “rational.” (R9-1739) The judge's personal opinion about the psychological significance of these factors was contrary to the testimony of Dr. Berlin - a psychiatrist and leading national expert on sex offenders - who testified that the murders were the product of an irrational and disturbed mind. (V141-8843). 36 As evidence that Rory demonstrated a “capacity to conform his conduct to the requirements of the law,” the trial court asserted that Rory did not have sex with prostitutes in his car to avoid the risk of detection or arrest, repressed his victims out of respect, and planned the killings. (R9-1739). The trial court's reasoning misinterprets and misapplies this mitigator. The evidence cited by the trial court does not have any logical relevance to whether Rory’s capacity to conform his conduct to the requirements of the law was substantially impaired. Rory’s confession as well as the uncontroverted expert testimony established that he was subject to a powerful The record contained ample evidence - ignored by the trial court-that Rory was irrational, e.g. talking to the dead victims, blaming the victims for his problems but apologizing to them for having killed them, etc. (V141-8826) cxvii TABLE OF CITATIONS (continued)
compulsion to kill that he resisted but was ultimately unable to control. 37 Contrary to the trial court's implication, insanity is not the standard for establishing this mitigator. See Knowles v. State, 632 So.2d 62, 67 (Fla. 1994).Thus, there was no competent or substantial basis in the record -to support the trial court's rejection of this mitigator.
The trial court regrouped the 61 non-statutory mitigating circumstances proffered by the defense (R9-1701-5) into 12. (R9-1740-1). The court found several existed but rejected the rest claiming they were not supported by “any credible or significant evidence....” (R9-1743). Mr. Conde maintains that many of these mitigators were established by the greater weight of the evidence and were, therefore, not properly rejected.
The trial court rejected the defense assertion that Rory was “orphaned by the abandonment of his father at an early age” and that his “father repeatedly [abandoned him] throughout his life including at the time of trial.” (R9-1742 (1, 2)). These The court relied upon Rory’s criminal conduct in connection with Gloria Maestre to negate the experts' opinions regarding the impairment of Rory’s ability to conform his conduct to the requirements of the law. (R9-1739-40). There is, however, nothing but the court's speculation that Rory’s state of mind in June, 1995, reflected his state of mind six months earlier when he murdered Dunn. See, e.g.
Hartley, 686 So.2d 1323-4 (court cannot rely on speculation to find statutory aggravator). Dr. Berlin’s contrary opinion that the crimes Rory committed after Dunn’s murder reflected a different, more controlled state of mind than before, (v141- 8837-8), was well-substantiated by the evidence.
cxviii TABLE OF CITATIONS (continued)
mitigating circumstances were established by substantial record evidence that was completely uncontradicated. (v137-8228, 8322-4, 8331-2, 8340; v139-8562). Similarly, the trial court rejected the defense assertion that “[w]hie living in Colombia as a child, [Rory] was subjected to violent, unsafe, unstable and/or unpredictable environment, at home and in the community,” (R9-1742 (3), even though it was established by uncontradicted evidence. (v137-8331-41, 8350; v138-8560-62; v139-8563-6; v140-
8600, 8605-6).38
The trial court rejected the defense assertion that Rory’s “execution will have further negative effects on his children, wife, in-laws, grandmother, sister,... and friends, and will cause them to suffer.” (R9-1742-3 (16)). There was overwhelming and uncontradicted evidence that Rory’s children continued to have a strong, loving relationship with him even while he was in jail and they would suffer a tremendous loss in the event of his execution. (v135-8101, 8109, 8127, 8127, 8139; v137-8175, 8235;
v138-8405-7, 8475-80; v140-8668-70).
rejecting each of the 16 proffered circumstances regarding Rory’s “family background during childhood and adulthood,” the trial court resorted to the most strained interpretation of the testimony possible. It found that Rory’s uncle Carlos D'Andres, the person Rory disclosed had raped him nearly daily from the age of 6 to The record likewise supports numerous of the other childhood and adulthood family background factors, which the trial court rejected, by reliable and uncontradicted evidence.
cxix TABLE OF CITATIONS (continued)
12, (v140-8630-32), provided Rory and his sister “with a wonderful and loving home with a maid.” (R9-1743). The trial court further concluded that Rory’s father Gustavo, who, repeatedly abandoned Rory throughout his childhood and adolescence, and through and including trial, (v137-8228, 8331-2, 8340; v139-8562; v140-8640), “loved [Rory] and... considered [him] to be a great and wonderful child....” (R9- 1743). The trial court's acceptance of this most unlikely scenario is belied by the weight of the evidence, strains all credibility, and must be rejected.
The court rejected the mitigating factor of physical, mental, or sexual abuse because it found there was “no direct proof of such abuse, but rather conflicting evidence that any abuse occurred....” (R9-1743-4). Direct proof is not necessary to prove a mitigator. As discussed supra, there is abundant, compelling, and uncontradicted evidence demonstrating emotional abuse, (v137-8347-50; v138-8451;
v139-8566; v140-8600, 8605), physical abuse, (v137-8348; v138-8451; (v140-8606), and sexual abuse. (v138-8366-7; v140-8579-80, 8595-9; v141-8833, 8857; v142-8966- 7, 9014-22). The record contains no competent or substantial evidence to negate their existence.
The trial court rejected remorse as a mitigating circumstance. (R9-1746). The court acknowledged that the defense offered evidence of remorse through Dr. William Riebsane, (v141-8743-4), Dr. Berlin, (v141-8841), and Chaplain Bazarro. (v147-9306- 11). The trial court asserted, however, that it had doubts about the genuine ness of TABLE OF CITATIONS (continued)
Rory’s remorse based on “prior conflicting evidence offered by the aforementioned witnesses.” (R9-1746). The trial court failed to identify this “conflicting” evidence.
Moreover, the trial court asserted that the “manner of death of the victim as well as the manner in which [the defendant] disposed of or dumped the victim's body belie[d] his claim of remorse.” (Id.). Certainly, neither the manner of death nor the manner in which Rory disposed of the bodies (which Dr. Berlin testified reflected remorse and respect for the victims (v141-8826)) could have preempted his subsequent showing of genuine remorse. Thus, the trial court erred in rejecting this, and the other,
X. THE DEFENDANT WAS DENIED A FAIR
SENTENCING HEARING AS A RESULT OF THE
TRIAL COURT'S ERRONEOUS ADMISSION OF
COLLATERAL CRIMES EVIDENCE AND THE
PROSECUTOR'S RELATED IMPROPER
ARGUMENTS.
Assuming, arguendo, that the collateral crimes evidence does not require a new trial, at the very least, it requires a new sentencing. Mr. Condes Motion in Limine regarding the collateral homicides contemplated their inflammatory impact on the penalty phase. (R4-693, 701-4; v86-3192). Additionally, the trial court erroneously admitted, over defense objection, evidence regarding Condes collateral crimes against For the same reason any error in the trial court's finding of CCP must be deemed harmful, see footnote 27, supra, its erroneous failure to find of the statutory or non-statutory mitigators urged on appeal must also be deemed harmful.
cxxi TABLE OF CITATIONS (continued)
Maestre. (R5-890-2; v118-6536). See argument VB, supra. Also, though the jury was permitted to hear evidence that Conde previously had been convicted of a violent felony, section 921.141(5)(b), the admission of detective Richter's detailed testimony about the facts of this offense (v135-7991-8045) was error, particularly in light of the defense offer to stipulated to Rory’s conviction for armed sexual battery. (v135-7963-4) As the jury was specifically advised, the collateral homicides were not to be considered aggravating circumstances, (v143-9224), and, hence, had no relevance.
Thus, the only likely impact of the collateral crimes evidence during the penalty phase was its inherent tendency to improperly suggest a recommendation of death based on bad character or propensity to commit murder. See Finney v. State, 660 So.2d 674, 681(Fla. 1995).
Any confidence in the trial court's instruction to refuse this tendency was under mined by the prosecutors improper and inflammatory remarks during penalty phase closing argument. The prosecutor referred to Rory as a “brutal person who committed sex ial murders...” (v143-9095). Arguing that Rory derived some feeling of power from killing, the prosecutor urged: “He liked how that felt. He liked not being the under dog. He lived having the power of life and death. And he killed, and he killed, and he killed.” (v143-9102). At the end of his argument, the prosecutor, again, raised the impermissible “serial murderer” theme: “A person once said no serial cxxii TABLE OF CITATIONS (continued)
policeman... and that is the truth.” (V143-9153). Defense objection was overruled. (Id.) See Brooks v.
State, 762 So.2d 879, 898-902 (Fla. 2000) Accordingly, Mr. Conde was denied a constitutionally fair sentencing, see U.S. Const. amend. VI, VIII, XIV, and his death sentence must be reversed.
XI. THE TRIAL COURT ERRED IN EXCLUDING CRUCIAL
DEFENSE EVIDENCE OF MR. CONDE BEING
SEXUALLY ABUSED AS A CHILD IN VIOLATION OF
HIS CONSTITUTIONAL RIGHTS TO PRESENT
MITIGATION.
capital case has an absolute right to introduce non-statutory mitigating evidence at the penalty phase. Lockett v. Ohio, 438 U.S. 586 (1978);
685, 689 (Fla. 1990), vacated on other grounds, 112 S.Ct. 3020 (1992); see U.S. Const.
amend. VI, VIII, XIV; Art. I, §§ 9, 17, Fla. Const. Mitigating evidence consists of matters relevant to the defendant's character or record, or the circumstances of the offense, proffered as a basis for a sentence less than death. Rogers v. State, 511 evidence, a defendant need not strictly adhered to the rules of evidence. Hitchcock, A significant issue during the penalty phase was whether Rory had been sexually abused as a child. This was offered as a non-statutory mitigator. (R9-1702). It was cxxiii TABLE OF CITATIONS (continued)
also a factor bearing on Rory’s psychological profile at the time of the charged murder and contributed to the mental health experts' opinions regarding the severe emotional/psychological disturbance that led to Rory’s criminal conduct. It explained Rory’s explosives reaction to his sexual encounter with Comesana which set him on the path to Dunn’s murder. (v141-8835). The state claimed in penalty phase closing argument that whether Rory had been sexually abused as a child “was almost the entire crux of the defense case.” (v143-9101).
Psychotherapist Hervis, who extensively interviewed Rory’s family and friends to develop a comprehensive picture of Rory’s relationships, testified that over the course of a series of painful interviews with Rory shortly before the penalty phase trial, Rory admitted that he had been repeatedly and continuously sexually abused by his two uncle when he was from 6 to 12 years old. (v140-8619-37). This was one of the factors that Hervis testified led to Rory’s “breaking point” when he began committing the murders. (v140-8680-95).
causes of sexual addiction in adulthood (the condition that Berlin testified brought Rory into contact with the murder victims) is abuse in childhood. (v141-8833). He testified that he had been told by a “defense investigator” that Rory had been molested by his two uncle but did not rely heavily on this information in rendering his mitigation opinions. (Id. at 8856-7). Dr. Golden testified that Rory’s personality profile was consistent with Rory having been the cxxiv TABLE OF CITATIONS (continued)
victim of childhood sexual abuse. He believed that Rory had been abused as a child.
(v142-8949-55). On cross-examination, the state elicited that Golden had only learned about Rory’s claimed sexual abuse as a child about three weeks earlier. (Id. at 8990).
Thus, the question of whether Rory had been sexually abused as a child was critical.
In its opening, penalty phase statement, the state sought to dis credit the defense evidence that Rory had been sexually abused as a child, and the mental mitigation that was substantially linked to it, by urging that this claim had only surfaced one week earlier. (v135-7977). The state urged that the late disclosure of this information indicated
of the penalty phase proceedings, the defense proffered the testimony of jail Chaplain Bizarro who Rory had met in 1995, shortly after his arrest and long before the defense development of any mitigation, and to whom Rory had confided the sexual abuse allegations. (v140-8579-80 (proffer by counsel); v142-9014- 22 (proffered testimony of witness)). The defense had just discovered this witness.
only to corroborate Rory’s claim of childhood sexual abuse, but also to rebut the state's assertion that this claim was recently fabricated. (v135-7977). Bizarro's testimony was clearly Rory’s best evidence on this crucial point. It was also essential to bolster the experts' opinions.
Upon the state's Richardson objection, the trial court agreed that the late disclosure of Bizarro's testimony was inadvertent. However, because the testimony TABLE OF CITATIONS (continued)
Hervis' testimony, the court excluded the testimony. (v140-8588-9). This ruling unconstitutionally prevented Rory from presenting crucial evidence to the jury that was integral to his mitigation.
XII. IMPOSITION OF THE DEATH PENALTY AGAINST
CONDE IS CONSTITUTIONALLY
DISPROPORTIONATE.
As argued above, Mr. Conde maintains that the trial court improperly found CCP and HAC and erroneously rejected the mental mitigator, of extreme psychological or emotional disturbance, and substantial impairment of defendant's capacity to appreciate the criminality of its conduct or conform his conduct to the requirements of law, as well as numerous non-statutory mitigators. If this court agrees with Mr. Conde on any of these issues, given the forceful, uncontroverted evidence indicating a severe emotional or psychological disturbance, he maintains that his sentence of death is disproportionate and must be reduced to life in prison. See Farinas v. State, 569 So.2d 425, 431 (Fla. 1990)(death sentence disproportionate though murder committed while defendant committing another felony and HAC aggravators upheld and trial court found statutory mental mitigators entitled to little weight and outweighed by aggravators); U.S. Const. amend. VIII, XIV; Art. I § 17, Fla. Const.
cxxvi TABLE OF CITATIONS (continued)
XIII. FLORIDA’S DEATH PENALTY STATUTE
VIOLATES THE UNITED STATES AND FLORIDA
CONSTITUTIONS BECAUSE IT (1) DOES NOT
REQUIRE NOTICE OF AGGRAVATING
CIRCUMSTANCES OR (2) REQUIRE SPECIFIC
JURY FINDINGS REGARDING THE
SENTENCING FACTORS; (3) PERMITS A NON- UNANIMOUS RECOMMENDATION OF DEATH;
(4) IMPROPERLY SHIFTS THE BURDEN OF
PROOF AND PERSUASION TO THE DEFENSE;
AND (5) FAILS ADEQUATELY TO GUIDE THE
JURY'S DISCRETION.
Mr. Conde moved to declared section 921.141, Florida Statutes, unconstitutional because of, inter alia, its failure to require specific jury findings regarding the sentencing factors, (R7-1367-70, R8-1405-7, 1586-7), its failure to require a unanimous recommendation of death, (R8-1420-1), improper burden shifting, (R7-1380-5), and failure to provide the jury adequate guidance. (R7-1323-31). The trial court denied each of these motions. (v134-7938-49).
The U.S. Supreme Court recently held that held that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penal ties to which a criminal defendant is exposed.” Apprendi v.
cxxvii TABLE OF CITATIONS (continued)
252-53 (1999)). Grounding its decision both in the jury's traditional role under the Sixth Amendment and principles of due process, the Court made clear that [i]f a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others...
it necessarily follows that the defendant should not — at the moment the state is put to proof of those circumstances — be deprived of protection that have, until that point unquestionably attached.
at 484. These essential protection include (1) notice of the government's intent to establish facts that will enhance the defendant's sentence, (2) determination by a unanimous jury that the sentence-enhancing facts exist, and (3) such facts have been established by the government beyond a reasonable doubt.
While the Apprendi and Jones majorities attempted to distinguish capital sentencing scheme, as the Jones dissenters noted, the distinction is illogical:
is constitutionally impermissible to allow a judge's finding to increase the maximum punishment for car jacking by 10 years, it is not clear why a judge's finding may increase the maximum punishment for murder from imprisonment to death.
the Court does not intend to overrule Walton [v. Arizona, 497 U.S. 639 (1990)], one would be hard pressed to tell from the [majority] opinion.”) (O’connor, J., dissenting). As Justice Kennedy anticipated, the majority's ruling compels a reexamination of this court's capital jurisprudence regarding the roles of judge and jury. Jones,
cxxviii TABLE OF CITATIONS (continued)
Florida’s capital sentencing scheme, like the hate crimes statute in Apprendi, exposes a defendant to enhanced punishment — death rather than life imprisonment — when a murder is committed “under certain circumstances but not others.” Id., 530 U.S. at 484). However, under Florida law, contrary to the principles espoused in Apprendi, (1) the state is not required to provide notice of the aggravating circumstances it int ends to establish at the penalty phase; (2) the jury is not required to make any specific findings regarding the existence of aggravating circumstances, or even of a defendant's eligibility for the death penalty; (3) there is no requirement of jury unanimity for finding individual aggravating circumstances or for making a recommendation of death; and (4) the state is not required to prove the appropriate ness of the death penalty beyond a reasonable doubt. 40 Accordingly, the sentencing scheme violates the Eighth and Fourteenth Amendments
691 (Fla. 2000) (prior DUI must be charged, presented to jury, and proven beyond reasonable doubt for felony DUI concurring) (lack of jury findings, combined with Tedder reference, raises serious arbitrariness problem); Williams v. State, 438 So.2d 781 9Fla. 1983 (unanimity at the guilt/innocence stage of a capital case required); § 921.141(2)(b), (3)(b), Fla. Stat.
(1993)(burden on defendant to prove that “sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist”); Jackson v. Dugger, 837 F.2d 1469, 1473 (11th Cir.)(instruction that advised jury that “death is presumed to be the proper sentence unless [aggravating factors] are overridden by one or more... mitigating circumstances” violated Eighth Amendment), cert. denied, 486 U.S.
1026 (1988).
cxxix TABLE OF CITATIONS (continued)
Constitution and article I, sections 9 and 17 of the Florida Constitution. 41
CONCLUSION
For the foregoing reasons, Mr. Condes convictions and death sentence must be reversed and the case be remanded for a new trial. Alternatively, Mr. Condes death sentence should be reduced to life or this case should be remanded for a new sentencing proceeding.
Respectfully submitted,
Specially Appointed Public Defender Counsel for Rory Enrique Conde 2250 Southwest Third Avenue, 4th Floor Miami, Florida 33129 Telephone: (305) 858-9550 Facsimile: (305) 858-7491 In Mills v. Moore, 786 So.2d 532, 535-7 (Fla. 2001), this court held that Apprendi did not invalidate Florida’s capital sentencing scheme because the Supreme Court did not overrule Walton v. Arizona, 497 U.S. 639 (1990), which upheld the constitutionality of judge sentencing in capital cases. As the court recognized in sentencing scheme differ from Arizona’s because the jury is a co-sentencer in Florida. This court also stated that no court had yet extended Apprendi to capital sentencing scheme. Id. Since Mills was decided, an Indiana trial court in State v.
Barker, case no. 49G05-9308-CF-095544 (Marion County, Indiana Superior Court) (Sept. 19, 2001), held that Indiana's capital sentencing statute-which is similar in all material respects to Florida’s - is unconstitutional under Apprendi. Finally, Mills relied erroneously on the denial of certiorari in Weeks v. Delaware, 121 S.Ct. 476 (2001), wherein the Delaware Supreme Court concluded that Apprendi does not apply to capital sentencing scheme. It is well-settled that the denial of certiorari has no precedent ial value.
TABLE OF CITATIONS (continued)
Florida Bar No. 403237
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by United States mail this ____ day of November, 2001, to: Sandra Jaggard, Assistant Attorney General, Office of the Attorney General, Criminal Division, 444 Brickell Avenue, Suite 950, Miami, FL 33131.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the front requirements of Florida Rule of Appellate Procedure 9.210(a)(2).
IN THE SUPREME COURT OF FLORIDA
Appellant, CASE NO. SC00-789 vs. T.C. 95-19816
STATE OF FLORIDA,
Appellee.
APPELLEE'S ANSWER BRIEF
ON APPEAL FROM THE CIRCUIT COURT,
11TH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY
ATTORNEY GENERAL
Tallahassee, Florida
ASSISTANT ATTORNEY
GENERAL Florida Bar No. 0836907 1515 N. Flagler Drive 9th Floor West Palm Beach, FL.
33401 Telephone: (561) 837-5000 Counsel for Appellee AUTHORITIES CITED..................... ii
ARGUMENT
POINT I THE TRIAL COURT PROPERLY DENIED THE DEFENDANT'S CAUSE
CHALLENGES TO JURORS WHO DEMONSTRATED IMPARTIALITY AND
THE ABILITY TO RENDER A VERDICT BASED UPON EVIDENCE
POINT II
THE COURT CORRECTLY STRUCK VENIRE PERSON
POINT III
THE TRIAL COURT DID NOT ERR BY DENYING
APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL
ON THE FIRST-DEGREE MURDER CHARGE
POINT IV & X
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
ADMITTING WILLIAMS RULE EVIDENCE AT THE GUILT PHASE.
ALTERNATIVELY, THE EVIDENCE WAS PROPERLY ADMITTED
BECAUSE IT IS “INEXTRICABLY INTERTWINED.” FINALLY, ANY ALLEGED ERROR WAS HARMLESS. (Restated).
POINT V
THE TRIAL COURT PROPERLY ADMITTED CERTAIN EVIDENCE.
POINT VI & X
THE PROSECUTOR'S VARIOUS COMMENTS DID NOT DEPRIVE
APPELLANT OF A FAIR TRIAL AND FAIR SENTENCING HEARING.
POINT VII
THE TRIAL COURT PROPERLY FOUND THAT CONDES CONFESSION WAS VOLUNTARY. (Restated).
THE TRIAL COURT CORRECTLY FOUND CCP AND HAC.....84
POINT IX
THE TRIAL COURT CORRECTLY FOUND THAT THE TWO MURDERS
WERE ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL.
THE TRIAL COURT CORRECTLY EXCLUDED EVIDENCE FROM THE
PENALTY PHASE..................
THE DEATH PENALTY IS PROPORTIONAL IN THIS CASE...96
APPRENDI DOES NOT APPLY TO FLORIDA’S CAPITAL SENTENCING SCHEME
CERTIFICATE OF SERVICE....................
AUTHORITIES CITED
FEDERAL CASES
Cir. (1997).... 80 Ring v. Arizona, sl.op. 01-488 (June 24, (2002)........
F.3d 980 (10th Cir. 2001). 81
STATE CASES
2d 1065 (Fla. 1999)....... 23 Blackwood v. State, 777 So. 2d 399 (Fla. 2000).... 32, 97 Bottoson v. State, 27 Fla.L.Weekly S119 (Fla. January 31, 2001) Bowen v. State, 565 So. 2d 384 (Fla. 5th DCA 1990).. 76, 78 Bradley v. State, 787 So.2d 732 (Fla. 2001).........
2d 879 (Fla. 2000).... 57-58,63 Brown v. State, 124 So. 2d 481 (Fla.1960)........ 65 Bryan v. State, 533 So. 2d 744 (Fla. 1988)... 38-39, 54-55 Bush v. State, 809 So. 2d 107 (Fla. 4th DCA 2002).... 61 Cannady v. State, 427 So.2d 723 (Fla. 1983).........
Carpenter v. State, 785 So. 2d 1182 (Fla. 2001)..... 40 Carroll v. State, Nos. SC94611 & SC00-46, --- So. 2d (Fla. Mar.
7, (2002)......................... 71
Castro v. State, 644 So. 2d 987 (Fla. 1994) 3,7,10,12,14,15,20
186 (Fla.1997)... 63, 65-66 Chavez v. State, slip op. SC94586 (Fla. May 30, 200)...73-74, Cochran v. State, 547 So. 2d 928 (Fla. 1989)....... 24 Cole v. State, 701 So. 2d 845 (Fla. 1997)........ 37 Connor v. State, 803 So.2d 598 (Fla. 2001)..........
Dugger, 555 So.2d 849 (Fla. 1990)..........
Duest v. State, 462 So. 2d 446 (Fla. 1985)........ 58
(Fla. 4th DCA 1981).. 48-49 Evans v. State, 693 So. 2d 1096 (Fla. 3d DCA 1997).. 39, 55 Farina v. State, 680 So. 2d 392 (Fla. 1996)....... 20 Ferrell v. State, 686 So. 2d 1324 (Fla. 1996).... 44, 53 Finney v. State, 660 So. 2d 674 (Fla. 1995).... 38,39,54 Floyd v. State, 569 So. 2d 1225 (Fla. 1990)..... 12, 97 Foster v. State, 679 So. 2d 747 (Fla. 1996)....... 85 Gordon v. State, 704 So. 2d 107 (Fla. 1997)..... 22, 84 Gould v. State, 558 So. 2d 481 (Fla. 2d DCA 1990).... 39 Green v. State, 228 So. 2d 397 (Fla. 2d DCA 1969).... 45 Griffin v. State, 639 So. 2d 966 (Fla. 1994)....... 43 Gunsby v. State, 574 So. 2d 1085 (Fla. 1991)....... 97 Guzman v. State, 721 So.2d 1155 (Fla. 1998).........
1046 (Fla. (1993).... 33, 41 Holton v. State, 573 So. 2d 284 (Fla. (1990)....... 31 Hudson v. State, 538 So. 2d 829 (Fla. 1989)....... 97 Hunter v. State, 660 So. 2d 244 (Fla. (1995)..... 43, 53 James v. State, 695 So. 2d 1229 (Fla. (1997)....... 87 Jent v. State, 408 So. 2d 1024 (Fla. 1981)........ 37 Johnson v. State, 432 So. 2d 583 (Fla. 4th DCA 1981)... 45 Johnson v. State, 465 So. 2d 499 (Fla.)......... 88 Johnson v. State, 660 So. 2d 637 (Fla. (1995) 7, 10, 12, 14, 15 Kearse v. State, 770 So. 2d 1119 (Fla. (2000)6,10,12, 14, 15, 58 Keen v. State, 504 So. 2d 396 (Fla. (1987).... 55, 82, 83 Kimbrough v. State, 700 So. 2d 634 (Fla. (1997)...... 21 Kirkland v. State, 684 So. 2d 732 (Fla. (1996)...... 35 La Rocca v. State, 401 So. 2d 866 (Fla. 3d DCA 1981)).. 87 Lukehart v. State, 776 So. 2d 906 (Fla. (2000)...... 79 Lusk v. State, 446 So. 2d 1038 (Fla.1984)........ 15
1178 (Fla. 1st DCA 1994).. 59
Pagan v. State, 27 Fla. L. Weekly S299 (Fla. 2002).. 22-24 Paramore v. State, 229 So. 2d 855 (Fla. 1969)...... 59 Penn v. State, 574 So. 2d 1079 (Fla. 1991)........ 17 Pooler v. State, 704 So. 2d 1375 (Fla. 1997)....... 87 Preston v. State, 607 So. 2d 404 (Fla. 1992)....... 87 Randall v. State, 760 So. 2d 892 (Fla. 2000)....... 34 Ray v. State, 755 So. 2d 604 (Fla. 2000)......... 36 Richardson v. State, 246 So. 2d 771 (Fla.1971)...... 95 Rivera v. State, 561 So. 2d 536 (Fla. 1990)....... 87 Saavedra v. State, 622 So. 2d 952 (Fla.1993)....... 77 San Martin v. State, 705 So. 2d 1337 (Fla.1997)..... 21 Schwab v. State, 636 So. 2d 3 (Fla. 1994)........ 37 Sexton v. State, 697 So. 2d 833 (Fla. 1997).... 30,52,97 Sias v. State, 416 So. 2d 1213 (Fla. 3d DCA 1982).... 46 viii Sims v. State, 681 So. 2d 1112 (Fla. 1996)........ 20 Smith v. State, 699 So. 2d 629 (Fla. 1997)........ 21 Smithers v. State, 27 Fla. L. Weekly S477 (Fla. May 16, 2002)75 Snowden v. State, 537 So. 2d 1383 (Fla. 3d DCA 1989)... 45 Sochor v. State, 619 So. 2d 285 (Fla. 1993)... 28, 33, 88 Spencer v. State, 133 So. 2d 729 (Fla. 1961)....... 59 Spencer v. State, 645 So. 2d 377 (Fla. 1994)....... 58 State v. Ayala, 604 So. 2d 1275 (Fla. 4th DCA 1992)... 39 State v. Henry, 456 So. 2d 466 (Fla. 1984)........ 97 State v. Moore, 530 So. 2d 349 (Fla. 2d DCA 1988).... 76 State v. Polak, 598 So. 2d 152 (Fla. 1st DCA 1992).... 52
2d 1297 (Fla. 1994)....... 58 Thomas v. State, 326 So. 2d 413 (Fla. 1975)....... 59 Thomas v. State, 748 So. 2d 970 (Fla. 1999)..... 52, 65 Tompkins v State, 502 So. 2d 415 (Fla. 1986)....... 89
(Fla. 4th DCA 1982) 41-49 Traylor v. State, 596 So. 2d 957 (Fla. 1992)....... 68 Trease v. State, 768 So. 2d 1050 (Fla. 2000)....... 90 Tumulty v. State, 489 So. 2d 150 (Fla. 4th DCA 1986). 44, 53 Urbin v. State, 714 So. 2d 411 (Fla.1998)...... 59, 63 Walker v. State, 707 So. 2d 300 (Fla. 1997)....... 74 Walls v. State, 641 So. 2d 381 (Fla. 1994)........ 92 Waterhouse v. State, 596 So. 2d 1008 (Fla. 1992)..... 59 Webber v. State, 510 So. 2d 1210 (Fla. 2d DCA 1987)... 95 White v. State, 377 So. 2d 1149 (Fla. 1979)....... 64 Williams v. State, 621 So. 2d 413 (Fla.1993)....... 55 Wilson v. State, 330 So. 2d 457 (Fla. 1976)....... 56 Woodel v. State, 804 So. 2d 316 (Fla. 2001)..... 24, 30 Wuornos v. State, 644 So. 2d 1000 (Fla. 1994) Wyatt v. State, 641 So. 2d 355 (Fla. 1994)...... 51, 58 Zack v. State, 753 So. 2d 9 (Fla. 2000)...
PRELIMINARY STATEMENT
Appellant, defendant in the trial court below, will be referred to as “Appellant”, “Defendant”, or “Conde”. Appellee, the State of Florida, will be referred to as the “State”. References to the record will be by the symbol “R”, to the transcript will be by the symbol “T”, to any supplemental record or transcript will be by the symbols “SR” or “ST”, and to Condes brief will be by the symbol “IB”, followed by the appropriate page numbers.
STATEMENT OF THE CASE AND FACTS
Appellee accepts Appellant's statements of the case and facts for purposes of this appeal, subject to the additions, corrections, and/or clarifications set out in the Argument section.
SUMMARY OF THE ARGUMENT
POINT I- The trial court properly denied Condes “for cause” challenges to 6 jurors.
POINT II- The trial court properly exercised a cause challenge against venire person Aguirregaviria.
POINT III- Conde was not entitled to a judgment of acquittal because there was sufficient evidence of premeditation.
POINTS IV & X - Williams rule evidence was admitted properly.
POINT V- The trial court properly admitted certain evidence.
POINTS VI & X- The prosecutor did not make improper arguments during guilt and penalty phase.
POINT VII- Condes confession was free and voluntarily given.
POINT VIII- The trial court properly found CCP and HAC.
POINT IX- The trial court properly rejected statutory and non-statutory mitigators.
POINT XI- Chaplain Bizarro's testimony was excluded properly.
POINT XII- The death sentence is proportional.
POINTS XIII- Apprendi does not apply to this case.
POINT I
THE TRIAL COURT PROPERLY DENIED THE
DEFENDANT'S CAUSE CHALLENGES TO JURORS WHO
DEMONSTRATED IMPARTIALITY AND THE ABILITY TO
RENDER A VERDICT BASED UPON EVIDENCE
The trial court did not commit manifest error by denying defense counsel's cause challenges to six prospective jurors- Groom, William Hernandez, Huey, Owen, Rolle, and Fuentes-- against whom Conde was required to exercise peremptory challenges. See Looney v. State, 803 So.2d 656, 665 (Fla.
2001)(“[i]t is within a trial court's province to determine whether a challenge for cause is proper, and the trial court's determination of juror competency will not be overturned absent manifest error.”); Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1999)(same); Mendoza v. State, 700 So.2d 670, 675 (Fla.
(1997).
The standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is “whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'” Wainwright v.
S257 (Fla. March 21, 2002); Looney, at 665. It does not require that a juror's bias be proved with “unmistakable clarity.” Witt, 469 U.S. at 424-26. Whether or not a juror should be stricken for cause is a question for the trial judge and this Court “must give reference to the judge's determination of a prospective juror's qualifications.” Looney, at 665, citing Castro v. State, 644 So.2d 987, 989 (Fla. 1994). The decision is “based upon determination of demeanor and credibility that are peculiarly within a trial judge's province." Witt, 469 U.S. at 428. “A trial court has altitude in ruling upon a challenge for cause because the court has a better vantage point from which to evaluate prospective jurors' answers than does this Court in [its] review of the cold record.” Mendoza, at 675.
lack of clarity in the printed record, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law... this is why reference must be paid to the trial judge who sees and hears the juror.” Witt 469 U.S. at 425-26. See Gore v. State, 706 So.2d 1328, 1332 (Fla. 1997)(“a trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror incompetency”); Wainwright, at 424-26 (“because determination of juror bias cannot be reduced to question-andanswer sessions which obtain results in the manner of a catechism... reference must be paid to the trial judge who sees and hears the juror”).
Initially, it must be noted that Condes contention regarding William Hernandez is not preserved for appeal because defense counsel never moved to strike William Hernandez for cause. The examples used by Conde refer to Juror John Hernandez not William Hernandez. (T 4685). John Hernandez was subsequently dismissed for cause while William Hernandez, an impartial juror, was accepted by both sides. (T 5547, 5805-06, R6-1061). The argument is also unpreserved because defense counsel failed to identify William Hernandez as an objection able juror who would have been stricken had defense counsel's peremptory challenges not been exhausted (T 5902). See Mendoza, 700 So.2d at 674-75 (noting that in order for there to be reversible error based upon denial of a challenge for cause, appellant must have exhausted all peremptory challenges and identified an objection able juror who had to be accepted and sat on the jury);
Trotter v. State, 576 So.2d 691, 692-93 (Fla. 1990)(same);
Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla. 1989)(same);
Griefer v. DiPietro, 625 So.2d 1226,1228 (Fla. 4th DCA 1993)(same).
Turning to the other prospective jurors, Condes argument fails as the record in this case verified that no manifest error occurred since all of the jurors in question possessed an impartial state of mind and the ability to follow the law.
1. Prospective Juror Groom. Conde lists examples of Juror Groom’s alleged “perjury and proclivity toward the death penalty.” A review of these examples, when read in the context of Groom’s entire questioning, reveals no perjury or bias.
Groom’s questioning demonstrates candor and truthfulness.
The trial court began Groom’s questioning, explaining that the law requires jurors to wait until the second part of the trial to weigh the aggravating and mitigating circumstances and asking Groom whether he would be capable of doing that. Groom responded that “yes” he would. He agreed he would not automatically decide that the defendant deserved the death penalty if he returned a verdict of guilty (T 4151).
The prosecutor followed up on that point, explaining to Groom that they were looking for “jurors who even though they have already found the defendant guilty, are willing to listen to whatever else is presented before making a recommendation,.
capable of keeping an open mind” even if he returns a verdict of guilty.” (T 4152-53). Groom again responded affirmatively, and noted he was willing to listen (T 4153).
Defense counsel asked Groom to explain what his view of the death penalty was, and Groom responded that he thought it should be mandatory in some circumstances. He believed that murder and rape in some instances, such as the abduction and rape of a juvenile, were such circumstances (T 4154). Defense counsel then asked him to explain the particular types of murder he believed deserving of the death penalty and Groom responded that he did not think that there was “an alternate type of murder.
Murder is murder.” (T 4154). However, Groom noted that Condes background, the type of life he has lead or “anything of that sort” might “possibly” make a difference in his recommendation, so that even if he was convinced that Conde had killed Rhonda with premeditation he could recommend life (T 4155-56). After defense counsel reviewed the law concerning aggravators and mitigators, Groom stated he could “follow the Court's instructions” in terms of weighing that evidence (T 4157-58).
so by the court (T 4159-60).
Because Groom unequivocally stated he could follow the court's instructions (T 4157-4158) his belief that the death penalty should be imposed in “some circumstances”, did not impair his ability to be a competent juror. See Kearse v.
State, 770 So.2d 1119, 1128-29 (Fla. 2000)(affirm ing denial of cause challenge to juror who initially expressed belief in death penalty and frustrations with justice system, but, after further instruction, unequivocally stated he would follow law); Johnson
So.2d 637, 644 (Fla. 1995)(upholding trial court's denial of cause challenge to juror who strongly favored death penalty, but later noted she could follow sentencing instructions); Castro v. State, 644 So.2d 987, 990 (Fla. 1994) (same); Reaves v. State, 639 So.2d 1, 4 (Fla. 1994)(same).
Conde also alleged, as grounds for the cause challenge, that Groom committed perjury by stating on his questionnaire that he had never been arrested. (T 4950). An examination of this testimony, however, reveals his truthfulness. While reviewing his answers to the questionnaire with the Court, Groom volunteered that he had been arrested: “I put no there, but I mislead the question.” His ex-wife had had him arrested so she would get their house. With regard to Groom’s failure to reveal his arrests for driving while intoxicated and possession of alcohol by a juvenile, the record establishes no attempt by him to defraud the court or to commit perjury (T 4950; SR1 23-24, 28-31). Further, as the prosecution pointed out respect ing these undisclosed arrests, it was uncertain whether the jurors understood “traffic related matters” were criminal. (T 5436).
unlawful possession of alcohol by a minor cannot be considered “material” here because defense counsel exercised a peremptory against him and he did not sit on the jury. (T 5437).
A juror's non disclosure of information during voir dire warrants a new trial if the defendant establishes the information is relevant and material to jury service in this case, the juror concealed the information during questioning, and failure to disclose the information was not due to Nondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily exclude the juror from the jury.
682, 684 (Fla. 2000) (citations omitted). In denying the cause challenge to Groom, the trial court noted that “[s]sometimes jurors answer questions in a vacuum. When they hear additional information their answer will... change.” (T 5437).
2. Prospective Juror Huey. Appellant lists selected responses Mr. Huey (“Huey”) gave during venire, apparently to exemplify an alleged bias for the death penalty. However, when Huey's testimony is read in context, it shows no bias for the death penalty. In fact, Huey demonstrates his ability to be impartial and consider all evidence.
Upon the trial judge's questioning, Huey agreed to wait until the completion of the penalty phase and the presentation of aggravation and mitigation before considering a sentence (T 3680-81). The prosecutor followed up on that point, and Huey affirmed that he had the capacity and was willing to wait until the close of the second phase, to evaluate the evidence and make a sentencing recommendation (T 3681-82).
In response to defense question regarding his comments regarding the death penalty and that murderers give up their right to live, Huey explained that “anyone that would be found guilty of taking someone else's life I think gives up their right to live. I believe an eye for an eye.” (T 3682). He later replied: “Well, as I have stated... I believe that I can decide based on the aggravating or mitigating circumstances whether life imprisonment or the death penalty should be the appropriate choice.” (T 3682). When pressed by the defense as to what else Huey would need to hear in order not to recommend death, Huey explained that he “guess[ed] that would be the definition of what mitigating circumstances are. If perhaps there was some evidence presented that for whatever reason qualified as a mitigating circumstance, then that would be weighed in my judgment.” (T 3683). Huey agreed that there were mitigators that would have weight with him and make him believe Conde had not forfeited his right to live (T 3684). He explained he would look at Condes “frame of mind, whether he was under the influence of drugs... how the ladies were killed, and I think just the general review of his overall life up until that point.” (T 3684-85). Huey also agreed it would be hard to disregard the other five murders, but after instruction by the trial judge that those murders were not aggravating factors, Huey affirmed that he could follow the Court's instruction by noting that his view of “an eye for an eye” would not interfere with his ability to sit as a juror. (T 3685-88).
The relevant question is whether a juror can set aside opinions or impressions and base a verdict solely on the Phillips, 455 U.S. 209, 217 (1982) (ruling that a juror cannot be totally shielded from all influences that may affect their verdict). As the prosecutor noted, “many jurors are going to initially say that certain things are going to be very difficult for them. But the ultimate issue is whether or not they have the capacity to follow the Court's instructions on the law.” (T 3689).
Huey unequivocally averred that he could listen and weigh the evidence to make the appropriate sentencing recommendation.
He agreed to be impartial and follow the court's instructions, despite any preconceived notion of “an eye for an eye”.
Accordingly, the trial court correctly denied Condes motion to strike Huey for cause. Kearse, 770 So.2d at 1128-29; Johnson,
3. Prospective Juror Owens. Appellant gives no specific reason why the trial court erred by denying the cause challenge against prospective juror Owens (“Owens”). As such, Conde has failed to establish a claim for relief. Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990) (finding issue waived and reasoning that the “purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues”). Nonetheless, it is clear Owens was unbiased.
Ms. Owens, too, agreed, that she could await the penalty phase to listen to and weigh the aggravators and mitigators (T 3960). She avowed to keep an open mind for the penalty phase, even after Conde were found guilty. (T 3962). Initially, Owens noted she was for the death penalty and stated she “would automatically vote for the death penalty” for first-degree murder. However, she later clarified that she “would definitely have to hear everything before [she] agreed to the death penalty” and that she would “wait and listen to all the mitigating and aggravating factors before she made up her mind.” (T 3964, 3968) (emphasis added).
Without question, the record establishes that Owens would listen to all the evidence before making a recommendation. It was only upon later suggestive questioning by defense counsel that she agreed that she would vote for the death penalty if there was no reasonable doubt of a person committing first degree murder. (T 3964). However, Owen was rehabilitated when she confirmed that she would “definitely” listen to the aggravating and mitigating factors, before making a recommendation. (T 3968). Conde suggests that “this line of rehabilitation” was used repeatedly by the trial court to establish “that the venire persons would wait until all of the penalty phase evidence was in before allowing their bias for death determine their recommendation.” (IB-31, f.n.10).
individual who indicates an agreement with the death penalty cannot be said to have a bias for death.1 Indeed, if a It is hard to imagine whether any reasonable person has a true “bias for death.” Obviously, Appellant is referring to person indicates he does not believe in the death penalty and could not make such a recommendation, the prospective juror would be dismissed for cause. “A person who has beliefs which preclude her or him from finding a defendant guilty of an offense punishable by death shall not be qualified as a juror in may be dismissed for cause where he has a preconceived opinion and states he would automatically recommend death if the defendant is found guilty. See Floyd v. State,569 So.2d 1225 (Fla. 1990) (Only “[a juror's] unqualified predisposition to impose the death penalty for all premeditated murders warranted excusal for cause.”). Simply agreeing with the use of the death penalty in Florida, does not, by itself, establish a reason for dismissing a juror.
Owens was clear in her responses that she would listen to all the evidence before making a decision. She would “definitely have to hear everything before [agreeing] to the death penalty.” (T 3968). Thus, she was qualified to sit as a juror and the “for cause” challenge was denied properly. See Kearse, 770 So.2d at 1128-29; Johnson, 660 So.2d at 644; Castro,
4. Prospective Juror Rolle. Venire person Rolle (“Rolle”) a preference toward the death penalty over life imprisonment.
not give testimony which in any manner shows an irrevocably commitment to vote for the death penalty upon a finding of guilt. Rolle’s testimony demonstrates a willingness and a sense of responsibility to listen to all the evidence before making a sentencing determination.
Rolle confirmed that she would not make up her mind as to sentencing until after contemplating the aggravation and mitigation presented during the penalty phase. (T 3922). In fact, when questioned by the State on whether she “wouldn't, be able to recommend the death penalty, Rolle responded, “[n]o. I don't have those feelings right now because I haven't heard or, (emphasis added). This evinces that Rolle understood she had to listen and weigh all of the evidence that would be presented during the penalty phase.
Even when questioned by the defense, Rolle refused to “automatically” impose the death penalty. She stated she could not recommend death at that time: “... because I would have to... know, see all the evidence and I would want to be sure.” (T 3927). Even if she was sure that Conde did the killing, her recommendation would be either life or death (T 3927). None of her subsequent answers varied from the above responses. Rolle’s explanation of wanting to wait and listen to all of the evidence before making a recommendation serves as a strong indication of a unbiased potential juror. She further specifically stated that she would listen to the court's instructions. The trial court properly denied the motion to strike Rolle for cause. See Kearse, 770 So.2d at 1128-29; Johnson, 660 So.2d at 644; Castro,
6. Juror Fuentes “(Fuentes”). The juror agreed that he was capable of listening to both the aggravating and mitigating factors and waiting until the penalty phase before making a sentencing recommendation to the court (T 4897-98). He further stated that he could follow the court's instructions about not using evidence of the other murders as aggravators (T 4899- 4900). Under defense questioning, Fuentes reported that not all first-degree murder convictions deserve the death penalty, “but the majority of them” do deserve death (T 4901). Fuentes refused to commit to a predisposition for the death penalty, instead replying: “[w]ell, I don't know much about the case to make a comment like this, at that this time. (T 4901).
Defense counsel asked: “If you were persuaded Mr. Conde had strangled Rhonda Dunn with premeditation and killed her would you be pre disposed to the death penalty?” Mr. Fuentes responded: “Yes I would.” (T 4902). Defense counsel then lead Mr. Fuentes by asking: “And therefore you would place a burden on the defense to please you not to give the death penalty?” Mr. Fuentes responded: “That's the defenses job, yes.” (T 4902).
Continuing, defense counsel asked: “You won't be able to consider those factors [Condes background, life history] as mitigating factors?” Fuentes responded in the negative (T 4902).
Later, Fuentes was rehabilitated; he clarified that he was capable of waiting to hear all the penalty phase evidence before making a recommendation (T 4904). He further stated that he would follow the court's instruction on the aggravating/mitigating circumstances and disregarding the evidence of the other murders before making a recommendation. (T 4905). Fuentes clearly expressed his ability to listen to all of the evidence before making a recommendation. Thus, the trial court properly denied Condes for cause challenge to Fuentes.
See Kearse, 770 So.2d at 1128-29; Johnson, 660 So.2d at 644;
The decision to deny a challenge for cause will be upheld on appeal if there is support in the record for the decision.” Hertz v. State, 803 So.2d 629, 638 (Fla. 2001). The instant record clearly supports the trial court's denial of cause challenges to all five jurors questioned here as each demonstrated his/her impartiality and ability to follow the law.
See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984) (test of juror competency is whether juror can “lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court").
As this Court noted in Overton v. State, 801 So.2d 877, 893- 94 (Fla. 2001), the average jury in a death penalty case is uninformed and needs instruction on the “bifurcated process by which defendants may be tried and ultimately sentenced to the death penalty.” The “average juror” described in Overton, is precisely the type of jurors Conde questions here. The death penalty sentencing process had to be explained to all of the objected to jurors and each one expressed his ability to listen to all of the evidence before making a recommendation. Despite their alleged “pro-death sentiments”, none of the jurors in this case demonstrated an irrevocably commitment to recommend death upon conviction. Actually, a review of the record reveals that several venire persons were dismissed because they conveyed their inability to listen to aggravating and mitigating factors before being committed to recommending death. Given the trial court's superior vantage point, this Court should defer to its determination and affirm Condes conviction and sentence of death. See Overton, 801 So.2d at 893-94 (upholding denial of cause challenge to juror who stated during voir dire that he favored the death penalty, but eventually stated “he would ‘start from a clean slate,' follow the law and abide by the sentencing scheme which required him to consider aggravating and (affirm ing denial of for cause challenge because none of the challenged juror had indicated he would not follow judge's instructions or would recommend the death penalty automatically).
However, should the Court find that it was error to deny the for cause challenges, such was harmless error. Conde does not challenge on appeal any of the jurors who actually served on the jury. Rather, he challenges five jurors whom he excused United States Supreme Court noted that defendants do not have a constitutional right to peremptory challenges, they have a right to an impartial jury. Thus, any claim that the jury was not impartial must focus not on the jurors who were ultimately excused, but on those who actually served. Id. at 85-86. “So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. at
88. That the jury might have been different had these jurors been excused for cause cannot, by itself, man date reversal. See
any respect, that his jury was unfair. Thus, even if any of the foregoing jurors should have been excused for cause, any error was harmless where Conde has failed to show any prejudice by the jury that actually served. See Ross, 487 U.S. at 91; Penn v. State, 574 So. 2d 1079, 1081 (Fla. 1991).
POINT II
THE TRIAL COURT CORRECTLY STRUCK VENIRE
Conde argues that the trial court erroneously granted the state's cause challenge to potential juror Aguirregaviria (“Aguirregaviria”). This assertion is incorrect. Aguirregavira gave confused/equivocal responses to questions concerning her opinion of the death penalty. A record review reveals this confusion, and later opposition to the death penalty:
THE COURT:... Do you have any moral, religious or philosophical views where you would be prevented from considering the death penalty?
THE JUROR: Well, I don't really know if I believe in it or not.
THE COURT: Okay. Well, let's talk about that. Do you support it or not?
THE JUROR: No.
THE COURT: Okay. And is that based on religious or philosophical?
THE JUROR: No, that is just a feeling, you know --- THE COURT: Now, as you heard me say, in this case the State of Florida is seeking the death penalty. And if, in fact, you served on this jury and the jury returns a verdict as to first degree murder, the second part of the trial will require you to listen to aggravating and mitigating circumstances. Aggravating being those things that suggest death is the appropriate penalty and mitigating those things that suggest that life is the appropriate penalty. What I need to know is can you, in spite of your views, listen to those aggravating and mitigating circumstances, weigh them and make an appropriate recommendation to the Court.
THE JUROR: I can try, that is all I can say.
THE COURT: Let's assume the state proves the aggravating circumstances beyond a reasonable doubt, and they outweigh the mitigating factors. The law requires you to return a verdict or recommendation or death.
Can you do that based on your views?
THE JUROR: I don't know.
(T 3735-38) (emphasis added.).
sure whether she could vote for the death penalty (T 3737). Aguirregaviria could not say whether she could recommend death even were Conde found guilty (T 3738). These equivocal response continued during defense counsel questioning.
Aguirregaviria could not think of a crime where she though the death penalty was appropriate (T 3738). Defense counsel then went through examples of horrific crimes and the most Aguirregaviria would say is that she “guessed” or “might” vote for the death penalty (T 3738-39). She “guessed” that she could engage in the weighing process and “guessed” that she could vote for the death penalty (T 3739).
Additionally, Aguirregaviria did not fully commit herself to listening and weighing the evidence before making a recommendation. She gave no clear indication about her state of mind which created a reasonable doubt as to her impartiality.
Based on her answers, the trial court properly excused Aguiregaviria for cause. A juror is not required to state that she would never vote for the death penalty in order to be properly excused for cause nor does a trial court have to accept a juror as qualified who says that she “might” vote for the death penalty under certain personal standards. Morrison, 27 In Morrison, the juror initially stated that “he would prefer to see a person rehabilitated, even if they have murdered somebody,” and said he did not “know if [he] could push for the death penalty.” Like Aguiregaviria, the juror in Morrison was “not sure” if he could recommend death, even if he found that the aggravators outweighed the mitigators and “still was not sure” whether he could follow the law, even after the trial court explained the law to him. This Court held that such equivocation, i.e., being “not sure” was sufficient to support excusal for cause. Id. See Sims v. State, 681 So.2d 1112, 1117 (Fla. 1996) (upholding excusal for cause of juror who stated that she was “not sure” whether she would be able to vote for the death of the defendant); Castro, 644 So.2d at 989 (upholding excusal for cause where juror stated he was “not sure” he could follow instructions).
(1996) is misplaced as such is distinguishable from the instant matter. He argues that Aguiregaviria's responses were no more equivocal than those of the venire person, Hudson, in Farina.
Yet, review of Farina indicates that the challenged juror, while having “mixed feelings” said she would “try” to consider the state's request for a death recommendation. Id., 680 So.2d at 396-98. (IB at 35). Also, that juror indicated she fairly and in an unbiased manner consider recommending death and would vote to convict if she were convinced of the defendant's guilt. Id.
at 396-97. The Farina juror's unequivocal agreement to consider a death recommendation are not at all similar to Aguiregaviria's response here where she only gave a definitive answer when she expressed her opposition to the death penalty. Otherwise, Aguiregavira stated she “didn't know” or at best that she “guessed” she could vote for the death penalty. The trial court properly excused her for cause. See Fernandez v. State, 730 So.2d 277 (Fla. 1999) (no manifest error in excusing for cause jurors who gave equivocal responses as to whether they could follow the law and set aside personal beliefs concerning death penalty); San Martin v. State, 705 So.2d 1337, 1343 (Fla.1997) (finding excusals proper where jurors expressed personal opposition to death penalty and responded equivocally when asked if they could put aside personal feelings and follow law);
634, 639 (Fla. 1997)(opening “although the prospective juror did respond in the affirmative to a question by the defense attorney asking if she could follow the oath she would be administered and apply the law as instructed by the judge, she had clearly expressed uncertainty several times during the interview.”); Smith v. State, 699 So.2d 629, 636 (Fla. 1997) (finding no error in excusing juror for cause where he equivocally expressed impaired ability to follow the law).
POINT III
THE TRIAL COURT DID NOT ERR BY DENYING
APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL
ON THE FIRST-DEGREE MURDER CHARGE
Appellant argues that the state failed to present sufficient evidence to establish premeditation, and therefore, the trial court should have granted his motion for judgment of acquittal on the first-degree murder charge.
A de nov standard of review applies to motions for judgment of acquittal. Pagan v. State, 27 Fla.L.Weekly S299, S301 (Fla.
April 4, (2002). This Court has repeatedly reaffirmed the (Fla.1974), that a motion for judgment of acquittal will not be granted unless there is no legally sufficient evidence upon which a jury could base a verdict of guilty. See Morrison v State 27 Fla.L.Weekly S253 (Fla. March 21, (2002); Gordon v.
judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favor able to the adverse party that a jury might fairly and reasonably infer from the evidence.” Darling v. State, 808 So.2d 145, 155 (Fla. 2002).
motion for judgment of acquittal cannot be based on evidentiary conflict or witness credibility. Id. at 155. See Davis v. State, 425 So.2d 654, 655 (Fla. 5th DCA 1983) (the fact that the evidence is contradictory does not warrant a judgment of acquittal since the weight of the evidence and the witnesses' credibility are questions solely for the jury); Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) (holding that where reasonable minds may differ as to proof of ultimate fact, courts should submit the case to the jury).
of the evidence cannot pre vail where there is substantial and competent evidence to support the verdict and judgment." Darling,
an appellate court will not reverse a conviction which is supported by competent, substantial evidence.”); Terry v. State, 668 So.2d 954, 964 (Fla.1996)(same). “If, after viewing the evidence in the light most favor able to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 27 Fla.L.Weekly at S 301, citing Banks v.
State, 732 So.2d 1065 (Fla. 1999).
When the State's evidence is wholly circumstantial, however, the evidence must also be inconsistent with the defendant's version of events. Pagan 27 Fla.L.Weekly at S301. The State is not required to “rebut every possible variation” of events which could be inferred from the evidence or to completely disprove the defendant's theory of innocence. Rather, the State is required only to introduce competent evidence which is inconsistent with the defendant's theory of events. The jury is free to dis believe the defendant's version of events when the State presents evidence conflicting with that theory. DeAngelo
v. State, 616 So.2d 440 (Fla. 1993); Cochran v. State, 547 So.
2d 928, 930 (Fla. 1989); Hampton v. State, 549 So. 2d 1059, 1061 (Fla. 4th DCA 1989).
Contrary to Appellant's assertion, the State's premeditation evidence in this case is not wholly circumstantial. “A confession is direct, not circumstantial evidence.” Woodel v.
State, 804 So.2d 316, 321 (Fla. 2001). The State relied upon both Condes confession and circumstantial evidence to establish premeditation in this case. When there is both direct and circumstantial evidence, “it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases.” Pagan, at S301. Consequently, Appellant's first-degree murder conviction must be sustained if there is competent and substantial evidence of premeditation supporting the verdict.
A review of the record shows that there is competent and substantial evidence of premeditation in the instant case supporting the verdict. In Asay v. State, 580 So.2d 610, 612 (Fla. 1991), this Court defined premeditation as “a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” There is no minimum amount of time required to form premeditation; all that is needed is enough time to permit reflection and that may be only a few seconds.
Here, Appellant confessed to murdering six (6) prostitutes within a 4 month period, between September, 1994 and January, 1995 (T 7203-08). Rhonda was the last prostitute murdered.
Regarding her death, Appellant stated in his confession that he was on his way home from a dough nut shop when he saw Rhonda standing on the north side of 8th street, close to the cemetery (T 7475-76). It was a weeknight, at around midnight (T 7475).
in his bedroom (T 7478-79). They watched television after having sex the first time (T 7481).
second time and afterwards, he and Rhonda laid in bed together for about five minutes (T 7480- 81). Rhonda was lying at the foot of the bed (T 7481).
around her neck in the same manner that he had the others (T 7482). Rhonda struggled so Conde used both arms and hands (T 7482). She continued to struggle, hitting him, on his forehead, with a glass pear (a knick-knock that was sitting on top of the television)(T 7483). Appellant kept squeezing Rhonda’s neck as she was getting weaker (T 7483- 84). He pulled the glass pear out of her hand. According to Conde, the glass pear fell on top of her head and they both fell to the floor-- Conde wasn't sure whether Rhonda fell to her knees first (T 7484, 7486). The medical examiner, Dr. Rao, reported that Rhonda sustained severe blows to her head, consistent with being hit with a baseball bat (T 7128-42).
still around Rhonda’s neck and he continued squeezing her neck (T 7484). She was still struggling; her arms were failing (T 7486). Conde got on top of her and persisted in squeezing her neck until she died (T 7486, 7484). He claimed that it took only 20-30 seconds to strangle Rhonda, but Dr. Bell explained that an air way has to be obstructed for 3-4 minutes for a person to die from strangulation (T 7485, 6487-94).
The foregoing direct evidence shows that Appellant had sufficient time to reflect upon his actions and that he made a conscious decision to kill Rhonda. Conde had to decide to get up out of bed, follow Rhonda, get behind her, and then put his arm around her neck to strangle her. When she struggled, he consciously decided to put both arms and hands around her neck.
Likewise, he deliberately continued strangling Rhonda as she fought to get away, hitting him with the glass pear. Both fell to the floor during the struggle and Appellant consciously decided to pin Rhonda there so that she could not escape and methodically strangled her until she died. Such actions were purposeful, showing a conscious design to effect Rhonda’s death.
Conde knew that the probable result of putting his arms around Rhonda’s neck and strangling her would be her death. If her murder was not premeditated, Appellant could have stopped at any point during the struggle. Thus, the jury could reasonably infer, from Condes own account of Rhonda’s murder, that he consciously decided to kill her.
The jury also learned from Condes confession that he had murdered five (5) other prostitutes before killing Rhonda.
Appellant's murder spree took place over a four-month period, beginning in September, 1994 and culminating with Rhonda’s murder in January 1995. His confession describes each murder in detail and reveals that they all followed the same pattern.
Conde would pick up a prostitute, bring him/her back to his apartment, have sex with them and then after the sex act was completed, without any provocation, Appellant would manually strangle them to death. Conde even admitted to writing a message to the police on the third victim's body because he hadn't seen any media coverage on the murders and wanted the police to know that the murders were connected. Taunting the police, Conde wrote “Third, I will call Dwight, CHAN 10, see if you can catch me.” (T 7304-7314). Based on the fact that he had killed five (5) other prostitutes, in exactly the same manner, and had taunted the police to “catch him if they could,” the jury could reasonably infer from Appellant's own words that he intended to kill Rhonda.
addition to the direct evidence, there was overwhelming circumstantial evidence in this case from which the jury could reasonably infer that Appellant had a fully formed conscious purpose to kill Rhonda. “Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Sochor v. State, 619 So.2d 285, 288 (Fla. 1993), quoting Larry v. State, 104 So.2d 352, 354 (Fla. 1958).
Unquestionably, there was no provocation in this case.
Rhonda was not arguing or fighting with Appellant and had done nothing to anger him. Instead, as Appellant admitted, Rhonda was just walking to the bathroom when he got up, got behind her, put his arm around her neck and strangled her. Further, there could not be any previous difficulties between the parties because, as Conde confessed, he met Rhonda for the first time that night. The manner in which the murder was committed also shows premeditation. Appellant lured Rhonda to his apartment by coolly arranging a “date” with her. Once inside his apartment, he waited until after they had sex for a second time to catch her off-guard with his attack. Rhonda struggled hard during the attack, even after Conde bashed in her head, knocked her to the floor and pinned her there. The nature and manner of the wounds inflicted, likewise, show premeditation. The jury heard testimony from Dr. Valerie Rao who performed Rhonda’s autopsy.
She testified that Rhonda’s neck had hemorrhaging through several layers of muscle and beneath the esophagus, all the way down to the base of her skull. (T 7099, 7131-42). The hyoid bone in her neck was also fractured, which is hard to break in young people like Rhonda because the bone is very plastic (T 7131-42). Rhonda also sustained severe blows to her head, which Dr. Rao described as consistent with the kind of injury you would sustain if hit with a baseball bat or kicked in the head as hard as possible (T 7128-42). The damage was extensive, going all the way into her skull
(T 7121-30).
Additionally, Rhonda had abrasions and bruises on her left arm, left hand, right elbows and knees, which were consistent with a struggle (T 7108-20). Several of Rhonda’s artificial nails were broken off and her left pink finger nail was ripped (T 7120-22). The broken finger nails also indicated to Dr. Rao that there had been a struggle (T 7121-23). Rhonda also broke two (2) teeth during the struggle (T 7123-25). These injuries were defensive wounds, consistent with Rhonda fighting for her life.1 In Woodel v. State, 804 So.2d 316, 321 (Fla. 2001), a defendant who had also confessed to the murders, raised the same argument that Appellant has here, namely, that there was no direct evidence of premeditation and that the State's circumstantial evidence was insufficient. Noting that a confession is direct, not circumstantial, evidence, this Court found that Woodel's taped confession provided competent, Appellant's “weapon” of choice were his hands, which were just as deadly as a gun, knife or other instrument. See Sexton v. State775 So.2d 923, 934 (Fla. 2000)(noting that the defendant's “weapon” of choice was his son, over whom he had complete and total control).
substantial evidence upon which the jury could base a finding of premeditation. Woodel indicated in his confession that he had reflected on his actions prior to killing the victim, stating:
was going to leave. I thought that's what would happen if you got hit in the head, you know." Id. at 321. Further, Woodel smashed the victim on the head with the porcelain toilet rim and cut or stabbed her fifty-six times, and also stabbed the male victim eight times. See Middleton v. State, 426 So.2d 548 (Fla.1982) (confession that shooting was a "snap decision" sufficient to sustain premeditation).
Similarly, here, the jury could reasonably infer, from Condes confession alone, that he had the requisite premeditation. Conde admitted to murdering 5 prostitutes before Rhonda so it was reasonable for the jury to infer that Rhonda, too, would end up dead when she went with Conde that night.
Further, he admitted to writing on the third victim's body because he hadn't seen any media coverage on the story and wanted the police to know that the murders were connected. The writing taunted the police to “catch him” if they could. Conde also admitted that he struggled with Rhonda for some time and had to “pin her to the ground” before he could strangle her to death. Adding to the direct evidence in this case is compelling circumstantial evidence which further shows the presence of premeditation. Rhonda’s injuries show that a violent, rather lengthy struggle occurred during which Conde had time to reflect upon his actions. Rhonda’s head was bashed in and she had numerous defensive wounds–-abrasions, bruises, two broken teeth, and broken artificial nails. Dr. Bell also explained that it takes approximately 3-4 minutes for someone to die from strangulation. Thus, there is substantial, competent evidence supporting the jury's finding of premeditation.
There are numerous circumstantial evidence cases where a jury's finding of premeditation was upheld under the more stringent circumstantial evidence standard of review. For example, in Holton v. State, 573 So.2d 284, 289-90 (Fla. 1990), the victim was found with a ligature securely tied around her neck and her house was burned, presumably to conceal the crime.
The medical examiner determined that the cause of death was strangulation. Scratch marks on the defendant's chest indicated that the victim had struggled during the attack. Although the defendant had claimed that he did not intend to kill the victim and that the murder was an accident, this Court held that the evidence was sufficient to support the jury's verdict of premeditated murder. Based on the State's evidence to the contrary, the jury chose not to believe the defendant's version of events.
So.2d 440 (Fla. 1993), the defendant claimed that he killed the victim in a blind rage during an argument, but the State presented evidence at trial contradicting the defendant's story. The medical examiner testified that the defendant had to have choked the victim for five to ten minutes to kill her. In addition, evidence revealed that the victim was strangled manually and choked with a ligature. In light of these factors, this Court upheld the defendant's conviction for first-degree premeditated murder, finding substantial competent evidence to support the jury's verdict. Likewise, Condes conviction in the instant case must be upheld. See Blackwood v. State, 777 So.2d 399, 406-07 (Fla.
2000)(upholding jury's finding of premeditation where the defendant claimed that he did not intend to kill the victim based on the fact that the defendant used manual strangulation, strangulation by ligature, suffocation by stuff ing a wash cloth and bar of soap down the victim's throat and suffocation by pillow); Hitchcock v. State, 413 So.2d 741, 745 (Fla.
(1982)(finding that defendant's statement to jail mate that he choked the victim, took her outside, then choked her again–-all to quiet her–-supported a finding of premeditation); Czubak v.
State, 570 So.2d 925 (Fla. 1990) (finding jury properly found premeditation where victim manually strangled and defendant made comments about victim being dead); Sochor v. State, 619 So.2d 285 (Fla. 1993) (finding premeditation supported where defendant reflected during attack but chose to continue).
In support of his argument, Appellant relies solely on circumstantial evidence cases which are clearly distinguishable from this case. Hoefert v. State, 617 So.2d 1046 (Fla. 1993), is distinguishable because of the sheer lack of evidence. In Hoefert, the victim was found dead in Hoefert's apartment.
Because the body was so badly decomposed, the State was not able to prove the manner in which the homicide occurred or even the nature and manner of the wounds inflicted. The medical examiner was only able to say that the cause of death was “probably asphyxiation based upon the lack of finding anything else.” Id.
1048. There was no medical evidence or physical trauma to the victim's neck, no evidence of sexual activity, and no evidence of genital injuries. As a result, this Court could not find sufficient evidence to prove premeditation.
The opposite is true here. The state not only proved the manner in which Rhonda’s homicide occurred, but also the nature and manner of the wounds inflicted. There was no decomposition thwart ing the medical examiners ability to definitively state the cause of death. In fact, the medical examiner unequivocally stated that the manner of death was homicide and the cause of death was asphyxiation. What is more, there was ample medical evidence of physical trauma to Rhonda’s head and neck as reported by the medical examiner. Based upon the manner of death and the nature of Rhonda’s wounds, there is no question that sufficient evidence existed to prove premeditation.
Similarly, Randall v. State, 760 So.2d 892, 901-02 (Fla.
(2000), is distinguishable because all the State presented in that case, in support of premeditation, was evidence that the victims had died of asphyxiation through manual strangulation, had bruises and abrasions and that the defendant had a history of choking women to heighten sexual arousal. Randall argued that he began forcefully choking the murder victims during consensual sex and then when they struggled more than his girlfriend or ex-wife would have struggled, Randall became enraged and continued to choke them. This Court noted that because the other women that Randall choked during sexual activity did not die, it was reasonable to infer that Randall intended for his choking behavior to lead only to sexual gratification, not to the deaths of his sexual partners.
This Court concluded that there was insufficient evidence of premeditation because there was no suggestion that Randall exhibited, mentioned, or possessed an intent to kill the victims at any time prior to the homicides. Moreover, there was no evidence that either of the two murders was committed according to a preconceived plan. See Kirkland v. State, 684 So.2d 732, 734 (Fla. 1996)(evidence that victim suffered severe neck wound that caused her to bleed to death, and suffered other injuries that appeared to be result of blunt trauma was insufficient to establish premeditation because there was: no suggestion that defendant possessed intent to kill victim, no witnesses to events immediately preceding homicide, no evidence suggesting special arrangements were made to obtain murder weapon in advance of homicide; and State presented scant, if any, evidence to indicate that defendant committed the homicide according to a preconceived plan); Carpenter v. State, 785 So.2d 1182 (Fla.
(2001)(evidence that defendant had arranged three some at which victim was killed, that victim died as result of blunt trauma and neck compression and that defendant made statements to his cell mate implicating himself in the victim's murder were insufficient to establish premeditation because evidence did not exclude the reasonable hypothesis that the victim was killed, without premeditation, after she rebuffed sexual advances made by the defendant and other man).
his admitted actions and defies logic and common sense. The record shows that Appellant's actions were not committed in a fit of rage or emotion. The severity and length of the continuing attack shows that, at some point during the attack, Conde reflected and decided to kill Rhonda. Clearly, this is not a case where “blind and unreasoning passion” momentarily occluded his ability to form a premeditated design to kill. He obviously had the opportunity to reflect for at least a moment during this lengthy struggle. Notably, Conde admits in another portion of his Initial Brief (Point IV) that intent was not “a particularly contested issue at trial,” and that “Mr. Condes confession admitted his intent to murder Rhonda Dunn.” (IB 43).
POINTS IV & X
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
BY ADMITTING WILLIAMS RULE EVIDENCE AT THE
GUILT PHASE. ALTERNATIVELY, THE EVIDENCE
WAS PROPERLY ADMITTED BECAUSE IT IS
“INEXTRICABLY INTERTWINED.” FINALLY, ANY ALLEGED ERROR WAS HARMLESS. (Restated).
The trial court did not abuse its discretion by admitting the five (5) uncharged homicides as Williams rule2 evidence at Williams v. State, 110 So.2d 654 (Fla.), cert. denied, the guilt phase.3 See Ray v. State, 755 So.2d 604, 610 (Fla.
(2000) (admissibility of evidence is within the sound discretion of the trial court, and standard of review on appeal is abuse of discretion); Zack v. State, 753 So.2d 9, 25 (Fla. (2000); Cole
(Fla. 1997); Jent v. State, 408 So.2d 1024, 1039 (Fla. 1981). The evidence was properly admitted to prove Appellant's motive, intent, plan, knowledge, and the absence of mistake or accident. Alternatively, the evidence was admissible because it was “inextricably intertwined” with Rhonda’s murder. Finally, even if it were error to admit the evidence, it was harmless.
The Williams rule is modified in section 90.404(2)(a), Florida Statutes (2001), as follows:
Similar fact evidence of other crimes, wrong, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
Similar fact evidence that reveals other crimes is relevant and ‘admissible if it casts light upon the character of the act Appellant argues, in Point X, that the evidence was improperly admitted at the penalty phase also; however, it is clear that the 5 homicides were not introduced again at the penalty phase and the jury was instructed to not consider them as aggravators.
under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality' and should be admitted if ‘relevant for any purpose save that of showing bad character or propensity.'" Schwab v. State, 636 So.2d 3, 7 (Fla. 1994) (quoting Williams v.
State, 110 So.2d 654, 662 (Fla. 1959). In Williams v. State, 621 So.2d 413 (Fla.1993), this Court explained that:
As a general rule, such evidence is admissible if it casts light on a material fact in issue other than the defendant's bad other crimes or acts may be admissible if, because of its similarity to the charged crime, it is relevant to prove a material fact in issue. But it may also be admissible, even if not similar, if it is probative of a material fact in issue.
Although similarity is not a requirement for admission of other crime evidence, when the fact to be proven is, for example, identity or common plan or scheme it is generally the similarity between the charged offense and the other crime or act that gives the evidence probative value. Thus, evidence of other crimes, whether factually similar or dissimilar to the charged crime, is admissible if the evidence is relevant to prove a matter of consequence other than bad character or propensity.
2d 744, 746 (Fla. 1988), this Court explained that So-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence.
The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of the other crimes is relevant.
Thus, evidence of a collateral crime need not be factually identical or uniquely similar to the charged offense when such evidence is relevant to prove the defendant's motive to commit the charged offense. See Finney v. State, 660 So.2d 674, 682 (Fla. 1995). Similar fact evidence of collateral crimes may be admitted as relevant even if it is not uniquely similar. E.g., Bryan, 533 So.2d at 744-46; Gould v. State, 558 So.2d 481 (Fla.
2d DCA 1990), rev'd on other grounds, 577 So.2d 1302 (Fla.
(1991); State v. Ayala, 604 So.2d 1275 (Fla. 4th DCA (1992).
Only where Williams rule evidence is offered to prove identity by modus operandi or common plan or scheme, must the evidence establish a high level of similarity and also uniqueness in nature. See Drake v. State, 400 So.2d 1217 (Fla.1981), appeal Conde argues that the Williams rule evidence was inadmissible here because it was not relevant to proving identity, intent or modus operandi and because it impermissibly became a feature of the trial. Contrary to his first assertion, the Williams rule evidence was properly admitted because it was relevant to proving motive, intent, plan, knowledge, identity and the absence of mistake or accident. See Finney, 660 So.2d at 681-82; Evans v. State, 693 So.2d 1096, 1101 (Fla. 3d DCA 1997).
The State had to prove that Rhonda’s killing was a crime and not the result of an accident. Additionally, it had to prove the degree of the crime, i.e., that Rhonda’s killing was premeditated first-degree murder, not second-degree or thirddegree murder. The best way for the State to prove those things was by showing the pattern of homicides. In other words, the fact that Conde had killed 5 prostitutes before Rhonda, in exactly the same manner (manual strangulation), helped to show that he planned and intended to kill her, i.e., had a fully formed conscious purpose to kill her and that her death was not accidental. See Bradley v. State, 787 So.2d 732, 741-42 (Fla.
(2001) (holding Williams rule evidence that defendant vandalized the victim's girlfriends car the week before the murder was relevant to proving intent and premeditation).
There are specific links between Rhonda’s murder and the 5 victims: they were prostitutes; they were picked up in the same part of town and taken back to Condes apartment for sex; they were murdered after the sex acts were completed and in the same fashion, i.e., by manual strangulation; they were re-dressed after being killed and their bodies dumped face-down in grass swales. Also 4 of the 6 victims contained DNA and/or fiber evidence linking Conde to the crime. Proof of his plan and intent is also found in what he wrote on victim, Charity Nava’s, back: “this is the third, see if you can catch me.” The Williams rule evidence was also relevant to rebutting the defense that Rhonda’s murder was not premeditated. See Wuornos v. State, 644 So.2d 1000, 1006-07 (Fla. 1994) (holding that similar crime evidence, in the form of 6 other homicides committed by the defendant, was admissible to rebut the defendant's “claims regarding her level of intent and whether she acted in self-defense”; defendant testified that she was the actual victim in the circumstances leading up to the murder, which could have led the jury to conclude that she lacked the requisite intent had it believed her testimony); Hoefort v.
State, 617 So.2d 1046, 1049 (Fla. 1993)(holding that similar fact testimony, from four (4) of defendant's prior victims, was relevant to the issue of motive and to counter the defense's contention that the absence of visible trauma negate asphyxiation as the cause of death).
Appellant argued at trial and continues to argue here that Rhonda’s death was not premeditated. (IB 35-37). Instead, he argues, it was the result of an “internal combustion” of the wrenching emotions he felt because he blamed the prostitutes for his wife leaving him. The best evidence the State had to disprove his defense theory and to show that the killings were uncharged homicides–- they show conclusively that Conde planned and intended to kill Rhonda and that he did so with cool, calm reflection. The 5 uncharged murders also reveal Appellant's motive for the murders– proof, possibly to his wife, of how powerful he was. That is why he taunted the police by writing on Charity Nava’s back “catch me if you can.” Had the State tried Rhonda’s murder alone, Appellant could have argued that Rhonda’s death was accidental, perhaps the result of rough consensual sex. See Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982) (upholding admission of Williams rule evidence where defendant was on trial for the murders of two prostitutes by strangulation and the State admitted collateral crimes evidence of 6 other murders which court found relevant to proving identity and motive).
Further, the 5 uncharged murders also helped strengthen the State's identity evidence. The State's physical and scientific evidence linking Appellant to Rhonda’s murder was that much stronger because it was shown that Conde was linked to 4 of the 6 victims (DNA and fiber evidence linked to 4 of the 6 victims).
Had the State not been able to present the Williams rule evidence linking Appellant to 4 of the 6 victims by DNA and fiber evidence, the defense surely would have launched a more aggressive attack on that evidence regarding Rhonda’s murder and could possibly have created reasonable doubt. Finally, the 5 uncharged homicides were admissible to corroborate Condes confession, wherein he admitted to each and every one of the 5 homicides and provided specific details about them. See Townsend, 420 So.2d at 617 (noting that evidence of 6 collateral homicides of prostitutes, in trial of defendant for 3 murders of prostitutes, was relevant to corroborating defendant's confession wherein he admitted the 6 collateral homicides).4 Alternatively, the State notes that the evidence was admissible regardless of the Williams rule, as “inextricably intertwined,” to prove the entire context within which the charged crime was committed. In Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994) (citations omitted), this Court distinguished between evidence admitted under section 90.404(2)(a) of the Florida Evidence Code--so-called Williams Conde incorrectly includes the 175 pages of his confession in calculating the pages devoted to the 5 other murders. His confession is not Williams rule evidence.
rule evidence--and evidence admitted to establish the entire context of the charged crime:
In the past, there has been some confusion over exactly what evidence falls within the Williams rule. The heading of section 90.404(2) is "OTHER CRIMES, WRONGS, OR ACTS." Thus, practitioners have attempted to characterized all prior crimes or bad acts of an accused as Williams rule evidence.
This characterization is erroneous. The Williams rule, on its face, is limited to “[s]similar fact evidence.” § 90.404(2)(a), evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because "it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed."
See Coolen v. State, 696 So.2d 738, 742-43 (Fla. 1997) (“evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence”); Hunter
v. State, 660 So.2d 244 (Fla. 1995)(same).
Inseparable” or “inextricably intertwined” evidence includes evidence that is “inseparably linked in time and circumstance,” Erickson v. State, 565 So. 2d 328, 333 (Fla. 4th DCA 1990), and which is “necessary to fully describe the way in which the criminal deed happened,” T.S. v. State, 682 So. 2d 1202 (Fla. 4th DCA 1996). Admissible “inseparable crime” evidence “explains or throws light upon the crime being prosecuted” and allows the State “to present an orderly, intelligible case...” Tumulty v. State, 489 So. 2d 150, 153 (Fla. 4th DCA 1986). See Ferrell v. State, 686 So. 2d 1324, 1329 (Fla. 1996)(evidence completing the story of the crime on trial is admissible under §90.402).
previous homicides were “inextricably intertwined” with Rhonda’s because they were relevant and necessary to fully describe her murder, to place it in proper context and to complete the story of the crime. “Inseparable” crime evidence clearly includes evidence describing the events prior to or leading up to the crime. See Zack v. State, 753 So.2d 9, 16-17 (Fla. 2000)(upholding “inextricably intertwined” evidence of other crimes defendant committed during two-week period prior to the murder for which he was being tried); Damren
State, 696 So.2d 709 (Fla. 1997)(holding evidence that defendant had stolen from the mine, for which he was currently being tried for burglary, several weeks earlier was “inextricably intertwined”); Ferrell, 686 So.2d at 1329(holding evidence the defendant had robbed the murder victim two days before her death
THE WILLIAMS RULE EVIDENCE DID NOT BECOME A FEATURE OF THE
TRIAL.
The major focus of Appellant's argument is that the evidence of the other crimes impermissibly became a “feature” of the trial. Collateral crime evidence impermissibly becomes a “feature” of the trial where it transcends the bounds of relevancy to the offenses being tried. Williams, 117 So.2d at 475-76. In other words, where it is unduly emphasized, resulting in prosecutorial “overkill.” “[S]similar fact evidence will not be considered to be a feature of the case merely because a large amount of it comes before the jury. More is required for reversal than a showing that the evidence is voluminous.” Snowden v. State, 537 So.2d 1383, 1385 (Fla. 3d
DCA 1989).
Whether the collateral crime evidence became a focal point of the trial should be determined, not solely from the order in which the witnesses were presented, the number of witnesses who testified, or the number of transcript pages their testimony filled, but, rather, by the substance of the collateral crime evidence presented. Townsend, 420 So.2d at 617 (“the number of pages of testimony and exhibits should not be the sole test by any means'); Johnson v. State, 432 So. 2d 583 (Fla. 4th DCA 1981) (same); Green v. State, 228 So. 2d 397, 399 (Fla. 2d DCA 1969) (mere volume of collateral crime evidence does not make it a “feature”; whether a limiting instruction was given must also be considered).
Also, this court should consider the necessity of presenting the Williams Rule witnesses who testified; i.e., whether the State committed “needless ‘overkill.'” Wuornos, supra; Sias v.
2d 1213, 1216 (Fla. 3d DCA 1982)(although more time was spent and more evidence presented on the collateral crime, there was no error since the testimony which the state elicited was "confined to that which was necessary to establish its relevancy.") This case falls within the acceptable quantum of collateral crime evidence, and was not “overkill.” The testimony was curtailed to that necessary to prove that Conde committed the 5 other murders and a limiting instruction was given every time before the Williams rule evidence was admitted. Dibble v.
State, 347 So.2d 1096 (Fla. 1964)(noting State has burden of establishing that the defendant was perpetrator of the collateral crimes by clear and convincing evidence). In order to establish that Conde was the perpetrator of the five collateral crimes in this case, it was necessary for the State to present each of the collateral witnesses.
The trial court relied upon Townsend, 420 So.2d at 615, a strikingly similar case, in determining that the Williams rule evidence would not become a “feature” of the trial. Townsend was charged with murdering three prostitutes, two by strangulation and one by stabbing. At trial, the jury heard his taped confessions wherein he admitted killing the three women.
locate the crime scene for the third, which is no doubt the reason why the jury found him not guilty of that crime. All of the victims were young black women; their lower torsos were naked when found and they were generally lying with their legs in spread eagle fashion.
order to corroborate Townsend's confession, the State introduced evidence of six other homicides which occurred in 1979 involving black women, except for one white woman, all between the ages
The victims were either known prostitutes or had been seen walking the streets leading Townsend to believe they were prostitutes.
All of the incidents occurred in the same geographical area of Northwest Fort Lauderdale--except for two which occurred in Miami in close proximity to each other. All of the homicides occurred on open lots surrounded by debris or weeds or a structure to hide the victims. They were all found partially nude or nude from the waist down with their clothing located nearby. Most of them were lying on their backs with their legs in spread eagle fashion. The crimes generally happened at night. In all but two of the homicides, the cause of death was strangulation.
the collateral crimes, showed the police the crime scenes and corroborated facts which only the killer would know. The Fourth District concluded that the Williams rule evidence had not become a feature of the trial, reasoning:
It is true that the transcript contains over twice as many pages of testimony relative to the collateral crimes as there are pages relative to the crimes for which Townsend was on trial. It is also true that a majority of the exhibits involve the collateral crimes. However, given the number of similar crimes Townsend admitted committing which were so similar to the three for which he was being tried, the number of pages of testimony and exhibits should not be the sole test by any means.
The Court also noted that is not unusual in presenting Williams rule evidence to have victims of the other crimes testify, citing Espey v. State, 407 So.2d 300, 301 (Fla. 4th DCA 1981) (where defendant was charged with sexual battery of his grand daughter, 6 victims of same family testified to numerous instances of sexual battery committed on them by defendant);
Dean v. State, 277 So.2d 13 (Fla.1973) (four other rape victims were allowed to testify to the defendant's assault upon them and his modus operandi). Surely, the testimony of victims of collateral crimes has a stronger emotional impact and would tend to make them more of a “feature” of the trial than the professionals who testified in this case, i.e., police, crime scene technicians, medical examiners and forensic scientists.
Similarly, in Wuornos, 644 So.2d at 1007, this Court held that the nature of six prior murders was “relevant in establishing a pattern of similarities among the homicides,” which, in turn, was relevant to the State's theory of premeditation and to rebut the defendant's claim that she was attacked first. This Court held that the relevance of the testimony “clearly outweigh[ed]” the prejudice, thus, the introduction of the “extensive” Williams rule evidence was “fair” within the requirements of the law, i.e., was not unduly prejudicial. In so holding, this Court noted that “[a]ll evidence of a crime... prejudices the defense case.” Id. at 1007. See Epsey, 407 So.2d at 301(upholding admission of countless prior acts of coerced sexual abuse against five other children, as well as the house pet, where the evidence demonstrated a common scheme or plan).
Townsend and Wuornos are directly on point with this case.
The 5 other homicides in the instant case were relevant to establishing the pattern of Condes murders which, in turn, was vitally relevant to the State's theory of premeditation and to rebut Condes claim that he lacked premeditation. The collateral crimes were also relevant to corroborating Condes confession and to the State's identity and motive evidence.
Further, a limiting instruction was given each time the Williams rule testimony was admitted. See Oats v. State, 446 So. 2d 90, 94 (Fla. 1984)(noting that since the jury was given a limiting instruction on the use of the collateral crime evidence before it was introduced, any undue emphasis upon the collateral crimes evidence was corrected). This was not a case where the emotional impact of prior victims' testimony was admitted, but rather, one where only professional testified, i.e., police, crime scene technicians, medical examiners and forensic scientists. Thus, given the number of collateral crimes in this case, the quantity of the testimony was not overwhelming.5 See Wilson v. State, 330 So. 2d 457 (Fla. 1976)(holding that “extremely extensive,” 600 transcript pages, of evidence of prior crimes was properly admitted because it established a pattern of conduct); Dean v. State, 277 So. 2d 13 (Fla. 1973) (lengthy testimony regarding four other rapes was properly admitted under Williams); Headrick v. State, 240 So. 2d 203 (Fla. 2d DCA 1970) (rejecting defense's contention that State's collateral crime evidence (nine witnesses to establish six burglaries) became feature of trial; various crimes established criminal course of conduct).
pages devoted to the 5 other murders. His confession is not Williams rule evidence.
Unlike Steverson v. State, 695 So.2d 687 (Fla. 1997), relied upon by Conde, where extensive details of the collateral crime, shooting of a police officer, including the police Officer’s injuries and recovery, were admitted for no real purpose, the testimony in this case, as explained above, was vitally relevant. See Zack v. State, 753 So.2d 9 (Fla. 2000)(holding that collateral crimes evidence did not become a “feature” of the trial because it was necessary to rebut the defendant's defense and to piece together the sequence of events leading up to the crime).
HARMLESS ERROR
Even if this Court were to find that the Williams rule evidence was erroneously admitted, it was harmless beyond a reasonable doubt and there is no reasonable probability that the alleged error affected the outcome of this case. See § 924.051(7), Fla. Stat. (Supp. 1996). Cf. Wyatt v. State, 641 So. 2d 1336, 1340 (Fla. 1994)(any error in the mention of the witness protection program and defendant's demeanor while in jail was harmless). The focus of a harmless error analysis “is on the effect of the error on the trier-of fact.” State v.
DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). “The question is whether there is a reasonable possibility that the error affected the verdict.” Id.
Here, any error in admitting the testimony could not have contributed to the jury's verdict because the State introduced Condes confession to Rhonda’s murder and also introduced DNA and fiber evidence linking Conde to the crime. Considering the evidence introduced, it is clear that the Williams rule evidence, even if erroneous, did not contribute to the verdict.
POINT V
THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION BY ADMITTING CERTAIN EVIDENCE (Restated) The trial court did not abuse its discretion by admitting the following evidence: (1) limited evidence about G.M., another of Condes victims, who led to his arrest; (2) evidence from Vice Detecitve Martinez that he warned Rhonda, approximately 36 hours before her death, to stay close to the other prostitutes because there was a person strangling prostitutes in the area;
arrest, in his grandmother's apartment, Appellant was found crouching behind a bed. See Thomas v. State, 748 So.2d 970, 982 (Fla. 1999)(trial judge is afforded wide discretion regarding the admissibility of evidence and a ruling admitting or excluding evidence will not, generally, be reversed unless there has been a showing of an abuse of discretion); Sexton v. State, 697 So.2d 833 (Fla. 1997).
Defense counsel filed a pre-trial motion in limine to prevent the State from elicit ing any testimony about G.M. See State v. Polak, 598 So.2d 152 (Fla. 1 st DCA 1992)(noting that the standard of review on a ruling on a motion in limine is abuse of discretion). The trial court denied the motion but allowed limited evidence about G.M. to prove the sequence of events leading to Condes arrest. G.M. was found, on June 19, 1995, duct-taped from head-to-toe, in Condes apartment and it was her identification of Conde that led to his arrest.(T 6536-40).
Condes neighbors had heard a pounding or tapping noise coming from the apartment and called emergency services (T 6536-40).
Fire rescue worker, Marie Osaba, responded to the call and used a sledge hammer to break down the front door. Inside G.M. was found duct-taped from head-to-toe. Osaba showed G.M. a picture of Appellant that was on the refrigerator and G.M. identified him as the man who had been in the apartment (T 6536-48).6 This limited evidence about G.M. was admissible under section 90.402, Florida Statutes (2000), because it was “inextricably intertwined,” with the crime charged; necessary to complete the story of the crime, to present an orderly and Conde argues that Dr. Kahn intimated during his testimony that there was DNA evidence linking G.M. to Conde but a review of the record reveals there was no such testimony
(R 6717-20).
to explain why the State immediately requested that Conde consent to a search of his home and condominium when he was found and arrested one (1) week later.
crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence”); Hunter, 660 So.2d at 244 (same).
intertwined” evidence includes evidence that is “inseparably linked in time and circumstance,” Erickson, 565 So.2d at 333, and which is “necessary to fully describe the way in which the criminal deed happened,” T.S., 682 So.2d at 1202. See Tumulty, 489 So.2d at 153; Ferrell, 686 So.2d at 1329.
Here, Conde had killed 6 prostitutes over a 4 month period, September, 1994 through January, 1995, but the police had not focused on him as a suspect. The police knew that there was DNA evidence linking the same perpetrator to all 6 victims and when they discovered G.M., also a prostitute, duct-taped, from headto-toe, in Condes apartment on June 19, 1995, they knew they had their prime suspect in the murders. Thus, the limited account of G.M. was necessary to describe adequately the investigation leading up to Condes arrest and subsequent statements. See Henry v. State, 574 So.2d 73, 75 (Fla.
(1991)(noting that some reference to the son's murder 9 hours after mother's was necessary to describe adequately the investigation leading up to the defendant's arrest); Consalvo v.
809 (Fla. 1996)(holding that evidence of a robbery that the defendant committed 12 days after the murder for which he was being tried was relevant as “inseparable from the crime charged.”).
Alternatively, the evidence was admissible under section 90.404(2)(a), as evidence of “other crimes, wrong or acts.”7 Williams rule evidence is not limited to “other crimes, wrong or acts” with similar facts. See Bryan,
Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy.
659. Thus, “[s]o-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence.... [E]evidence of other crimes which are factually dissimilar to the charged crime is not barred if the evidence of other crimes is relevant.” Bryan 533 So.2d at Although this was not asserted as a ground, the State relies on the “right for the wrong reason” principle to support the trial court's ruling.
414 (Fla.1993) (evidence of other crimes or acts may be admissible, even if the facts are not similar, if they are relevant to prove a matter of consequence other than bad character or propensity); Evans v.
State, 693 So.2d 1096, 1102 (Fla. 3d DCA 1997).
Here, the limited evidence about G.M. was also relevant to show Condes motive and intent. See Zack v. State, 753 So.2d 9, 16-17 (Fla. 2000)(holding that evidence of crimes which the defendant committed in the two (2) weeks preceding the murder were relevant to show motive, intent, modus operandi and the entire context from which the murder arose).
reliance upon the line of cases culminating with Keen v. State, 775 So.2d 263 (Fla. 2000), is misplaced. Keen involves the principle that an extrajudicial statement to a police officer is generally not admissible for the purpose of explaining the logical sequence of events leading up to an investigation and arrest. Here, however, the limited testimony about G.M., including her identification of Conde8 was admitted into evidence through a fire rescue employee, Ms. Marie Osaba.
Thus, the cases relied upon by Conde (IB 50), do not apply.
Further, the extremely limited nature of the testimony ensured G.M.'s identification of Conde was admitted through the “excited utterance” exception to the hearsay rule.
that it did not become a “feature” of the trial.
Finally, even if error, the admission of the evidence was harmless beyond a reasonable doubt and there is no reasonable probability that the alleged error affected the outcome of this case. See DiGuilio, 491 So.2d at 1139. Considering the evidence presented in this case–Condes confession to Rhonda’s murder and the other 5, which was corroborated by forensic evidence, including DNA, fiber and tire evidence-- there is no doubt that the very limited testimony about G.M. did not affect the jury's verdict. Conde next challenges testimony from Detective Martinez about a warning he gave Rhonda approximately 36 hours before her murder. Detective Martinez testified that his biggest concern for Rhonda was that she was working alone and he told her to not work alone, to try to work with the rest of the girls and he made sure that she was aware that a person was strangling prostitutes on S.W. 8th street (T 6797-98).
Rhonda would just smile and laugh every time he told her (T 6798).
This testimony was relevant to corroborating the State's theory of premeditation. Because Rhonda had been warned about a strangler, it is reasonable to assume that she would have been careful about who she decided to “date.” Condes demeanor had to be calm and non-threatening for Rhonda to enter his car. He could not have been on the verge of an “internal combustion” of emotions. That supports the State's theory that Condes actions were deliberate and premeditated, part of a plan. Further, the testimony supports the State's identity evidence. Conde is soft-spoken and non-threatening and the person who Rhonda voluntarily went with had to be the same. Finally, it was relevant to prove Rhonda’s state of mind. See Brooks v. State, 787 So.2d 765, 771 (Fla. 2001)(victim's state of mind may be relevant to an element of the crime or may become an issue if used to rebut the defendant's theory of defense).
Condes last challenge is to the introduction of testimony, from Detective Estopinan that when he walked into Condes grandmother's apartment to arrest him, he saw Conde kneeling by the side of the bed, trying to conceal himself (T 6975).
Although Conde objected to this testimony prior to trial, he failed to renew his objection at the time of the testimony;
thus, his objection is not preserved. See Maharaj v. State, 597 So.2d 786, 790 (Fla. 1992)(holding that defendant had failed to preserve issue for review when he filed a motion in limine pretrial but did not renew his objection when the evidence was introduced). The admission of this evidence cannot be fundamental error as it merely describes how and where Conde was found and arrested.
POINT VI & X
THE PROSECUTOR'S VARIOUS COMMENTS DURING
OPENING AND CLOSING ARGUMENT DID NOT DEPRIVE
APPELLANT OF A FAIR TRIAL (Restated).
Appellant complains that the prosecutor made several improper comments during opening and closing arguments, the cumulative effect of which deprived him of a fair trial and fair sentencing hearing. The State submits that the comments in question are either procedurally barred because they were not preserved for appellate review, are not improper, or if improper, do not constitute fundamental error.
Appellant failed to preserve all but three of the allegedly improper comments for appellate review. The proper procedure to preserve review of an allegedly improper comment is to object, request a curative instruction, and/or move for a mistrial.
Kearse v. State, 770 So.2d 1119 (Fla. 2000); Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994); Duest v. State, 462 So. 2d 446 (Fla. 1985). Here, Conde failed to object to all but one (1) of the allegedly improper opening statement comments and did not move for a mistrial. Further, of the eleven (11) improper comments Conde claims were made during closing argument, he objected to only two. Again, he did not seek a mistrial.
Having failed to object and move for a mistrial, Conde has preserved only 3 comments for appellate review.
This Court has long held that absent a showing of fundamental error, the failure to object to an alleged improper comment bars review. See Brooks v. State, 762 So.2d 879, 905 (Fla. 2000); McDonald v. State, 743 So.2d 501, 505 (Fla. 1999);
(Fla. 1994); Street v. State, 636 So.2d 1297 (Fla. 1994); Waterhouse v. State, 596 So.2d 1008 (Fla. 1992). “Fundamental error has been defined as the type of error which ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'" Urbin
v. State, 714 So.2d 411, 418 n. 8 (Fla.1998)). See Crump v.
State, 622 So.2d 963, 972 (Fla.1993) (holding that since prosecutorial comments did not constitute fundamental error, absence of preservation of issue by defense counsel precluded review); Pacifico v. State, 642 So.2d 1178, 1182 (Fla. 1st DCA 1994).
Even where a challenged comment is the subject of a contemporaneous objection, this Court has repeatedly recognized that wide altitude is permitted in arguing to a jury. Breedlove
State, 326 So.2d 413 (Fla. 1975). Logical inferences may be drawn, and prosecutors are allowed to advance all legitimate arguments within the limits of their forensic talent in order to effectuate their enforcement of the criminal laws. Spencer v.
State, 133 So.2d 729 (Fla. 1961). The control of comments is within the trial court's discretion, and an appellate court will not interfere unless an abuse of such discretion is shown.
(Fla. 1969), modified, 408 U.S. 935 (1972). Each case must be considered on its own merits, however, and within the circumstances surrounding the complained of remarks. Id.
ATTACKS ON CONDES CHARACTER Conde complains that, during opening argument, the prosecutor unfairly attacked his character by referring to him as “this strangler,” “their attacker,” “their killer,” “the man who went out hunting for victims,” the man the police had dubbed “the Tamiami strangler” and referred to the police task force as “the strangler task force.” These unpreserved comments were not improper and do not constitute fundamental error. Read in context, they cannot be construed as a direct or implicit attack upon defendant's character, but rather, as a description of what happened and an outline or pre view of what the evidence would show. The prosecutor began his opening by describing where Rhonda’s body was found and its condition (T 6136-39). He informed the jury that Rhonda was a prostitute, but that she had never con sented or agreed to give up her life (T 6139). The prosecutor then noted that because Rhonda worked alone, the police had warned her about a man in the area who they had called the Tamiami strangler. That he was out there killing prostitutes.” (T 6139). The police made sure that she “knew that five other prostitutes had been murdered. And that each of them had been murdered in the same way. Each of them had been strangled. Strangled by that I mean, not with a rope around their neck or anything else using hands or arm in physically manually strangled to death.” (T 6139).
Continuing the prosecutor went over what the police knew, how and where the victims were found and the condition of their bodies. The prosecutor explained that some of them held semen evidence, “[e]evidence left by their attacker, their killer.” (T 6140). The prosecutor stated that the police “new (sic) about this strangler....” (T 6140). A little later the prosecutor discussed how Conde became a suspect, how the police were in his apartment, in response to the emergency call from G.M., and how they observed the green bee per that had belonged to victim Charity Nava and suddenly realized that “they [were] standing inside the strangler's home.” (T 6143).
evidence, the prosecutor explained how the task force geared up once they were told that the DNA was from the same perpetrator for 4 of the 6 victim's, “the detectives who had been working on the strangler task force for months were now ready to look for one man....” (T 6145).
Finally, the prosecutor told the jurors that this case was about Rhonda’s murder, not about whether the police or some scientific expert didn't do the right thing, “this is about a man who went out hunting for victims.” These unpreserved comments do not amount to attacks on Condes character. The purpose of opening argument is to “outline what an attorney expects the evidence will establish.
...” Bush v. State, 809 So.2d 107, 118 (Fla. 4th DCA 2002).
That is exactly what the prosecutor was doing here, none of his comments directly referred to or mentioned Conde, all the prosecutor was doing was describing what had happened to Rhonda which entailed mentioning her killer.
The only comment that was objected to during opening was the prosecutors statement, made while discussing the fiber evidence, that “each and every one of the victims of the Tamiami strangler were found to have these fibers [from the bathroom carpeting] on them.” (T 6149). Again, this comment was not directly linked to Conde and was simply a reference to the man who had killed these victims.
Conde also argues that several attacks on his character were made during closing argument including an unpreserved comment made while the prosecutor was telling the jurors that they knew what the truth was, they knew that “this defendant went out hunting for victims. That was his thing.” (T 7822). Again, read in context, this was not an attack on Condes character, but rather, a comment on the evidence and “fair reply” to defense counsel's closing argument that Conde killed all six victims, but did so in an emotional rage, not in a premeditated fashion. See Hazelwood v. State, 658 So.2d 1241, 1243 (Fla.
(1995) (it is “universal that counsel is accorded a wide altitude in making arguments to the jury particularly in retaliation to prior comments made by opposing counsel.”).
There was an objection to the prosecutors reference, during closing argument, to the fact that Condes wife found out that he was an adulterer: “[t]he defendant broke his marriage vows by going out with prostitutes and as a result of that his wife dis covers it. And what does --she obviously learns first of all he is an adulterer, but second of all even worse look who else he is having unprotected sex with.” (T 7776). Discussing how Conde blamed the prostitutes for breaking up his marriage, the prosecutor stated: “he is the one who created the situation. He is the one who should be convicted. He is the one who is a sociopath.” The trial court gave a curative instruction, telling the jury to disregard those two labels-- adulterer and sociopath (T 7789). In Moore, 27 Fla. L. Weekly S186 (Fla. March 7, 2002), this Court noted that it has continually expressed its intolerance for improper prosecutorial arguments and comments, especially in death cases. However, the court found two isolated references to Moore as "the devil," in that case, although ill advised, to be less problematic than the pervasive and extensive conduct condemned in other cases, like Brooks v.
State, 714 So.2d 411, 418-22 (Fla.1998). See Chandler v. State, 702 So.2d 186, 191 n. 5 (Fla.1997) (holding that a prosecutors isolated comments that defense counsel engaged in "cowardly" and "despicable" conduct and that the defendant was a "malevolent... a brutal rapist and conscienceless murderer" was not so prejudicial as to vitiate the entire trial); Carroll, 815 So.2d 601 (Fla. 2002)(finding prosecutors isolated statements that defendant was the "boogie man" and a "creature that stalked the night" who "must die" not so egregious or cumulative in scope to be error).
THE REFERENCE TO “UNCHARGED OFFENSES” Next, Conde argues that the prosecutor made reference to the 5 collateral homicides in opening statement and reminded the jury about them in closing argument. Again, all of these alleged errors are unpreserved as Conde failed to object to them. Further, it is clear that most of these statements were referring to what Conde said in his confession, his own words, which is not Williams rule evidence. The remaining statements, read in context, were merely proper comments on the evidence and were “fair reply” to the defense counsel's argument wherein he asserted that Rhonda’s murder was not premeditated and that there was no proof of that. See Hazelwood, 658 So.2d at 1243.
Appellant did object to the prosecutors reference to the testimony about G.M. in closing; however, that too, was merely a comment on the evidence. See also White v. State, 377 So. 2d 1149, 1150 (Fla. 1979)(“[i]t is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue").
ATTACKS” ON DEFENSE COUNSEL The last argument raised here is that the prosecutors closing unfairly attacked defense counsel. Again, these are unpreserved and do not constitute fundamental error. Defense counsel's closing focused on all the alleged mistakes the police, medical examiners and forensics people had made and tried to use that to create a reasonable doubt about the credibility of the physical evidence. In reply, the prosecutor pointed out that defense counsel was trying to obscured the real issues, leading the jury down the wrong path. These cannot reasonably be construed as attacks on defense counsel. They were fair reply to defense counsel's closing and fair comment on the evidence presented. See Chandler, at 191 n. 5 (holding that a prosecutors isolated comments that defense counsel engaged in "cowardly" and "despicable" conduct were not reversible error).
PENALTY PHASE
Appellant's final point, raised under Point X, is that he was denied a fair sentencing hearing because the prosecutor made impermissible arguments during the penalty phase closing argument. In order for improper comments made in the closing arguments of a penalty phase to constitute fundamental error, they must be so prejudicial as to taint the jury's recommended sentence. Brown v. State, 124 So.2d 481, 484 (Fla.1960); Thomas
985 (Fla.1999) In discussing the sexual abuse that Conde allegedly suffered as a child, the prosecutor noted that whatever Conde may have felt before, he now feels the power of killing “and he killed, and he killed and he killed,” and he killed Rhonda because he had the power to do so (T 9102). This alleged error was not objected to and therefore is unpreserved. Read in context, the prosecutor was trying to rebut Condes mental health experts and their testimony that he killed in an emotional rage, not because he derived pleasure from it. The jury had already decided that Conde was a killer; thus, this comment is not fundamental error.
as a “brutal person who committed serial murders.” However, this likewise is not reversible error. See Moore v. State, 27 Fla. L. Weekly at S186 (Fla. Mar. 7, 2002) (finding that two isolated references to Moore as "the devil" were not reversible); Chandler, 702 So.2d at 191 n. 5 (holding that a prosecutors isolated comments that defendant was a "malevolent... a brutal rapist and conscienceless murderer" was not so prejudicial as to vitiate the entire trial). As already noted, Conde had already been convicted of Rhonda’s murder by the penalty phase. Finally, Conde objected to the prosecutors statement, while discussing Condes attempts to conceal his crime, that “no serial murderer was ever that concerned with killing that they did it in front of a police officer” (T 9153).
Again, neither of these comments deprived Conde of a fair sentencing hearing.
POINT VII
THE TRIAL COURT CORRECTLY DENIED CONDES
MOTION TO SUPPRESS HIS CONFESSION
Prior to trial, Conde unsuccessfully attempted to suppress his confession to Rhonda’s murder. He now seeks to over turn that ruling; however, it is clear that the trial court properly denied the motion to suppress the confession. The standard of review applicable to a trial court's ruling on a motion to suppress is that “a presumption of correctness” applies to a trial court's determination of historical facts, but a de nov standard of review applies to legal issues and mixed questions of law and fact that ultimately determine constitutional issues.
See Smithers v. State, 27 Fla.L.Weekly S477 (Fla. May 16, 2002), citing Connor v. State, 803 So.2d 598, 608 (Fla. 2001).
When, as here, a defendant challenges the voluntariness of his or her confession, the burden is on the State to establish by a preponderance of the evidence that the confession was freely and voluntarily given.” DeConingh v. State, 433 So.2d 501, 504 (Fla. 1983). “In order to find that a confession is involuntary within the meaning of the Fourth Amendment, there must first be a finding that there was coercive police conduct.” State v. Sawyer, 561 So.2d 278, 281 (Fla. 2d DCA 1990), citing determining whether there was police coercion is determined by reviewing the totality of the circumstances under which the confession was obtained.” Sawyer
Here, Conde has not established improper police coercion.
Instead, the totality of the circumstances surrounding the confession demonstrate its voluntary nature and that it was given of Condes free will. See Traylor v. State, 596 So.2d 957, 965 (Fla. 1992) (opening "[w]e adhered to the principle that the state's authority to obtain freely given confessions is not an evil, but an unqualified good.").
Length Of Interrogation- A factor to be considered in reviewing the totality of the circumstances surrounding a confession is the length of time Conde spoke with the police prior to confessing. Initially, Conde mischaracterizes the manner in which he spent his time at the police station during the questioning process. He was not subject to continuous interrogation by rotting teams of police officers, as he suggests. Further, his “interrogation” room was a standard police interview room (8 x 10) and he was provided with a sports jacket when he complained of being cold.9 The transcript of the hearing on the motion to suppress reveals that the evidence presented contradicts Condes version of events.
Detective Romangi admitted that the room was cold and that 3-4 hours into the interview he had to get a sports coat for Conde (SR 225).
Conde did not testify at the suppression hearing. The facts admitted at the suppression hearing revealed an alert, intelligent, and cooperative Appellant. He was given breaks for the restroom, food and drink, and multiple breaks throughout the interview process, including several opportunities to telephone his family. Conde waived his rights no less than three times in this period. No facts to the contrary were presented to the trial court. Ignoring the factual evidence before the lower court, Conde now argues that his confession was involuntary.
However, it should be reiterated that there is no evidence that Appellant's free will was overborne at any time by any of the detectives.
Arriving at the police station at approximately 11:50 a.m.
on Saturday, June 24, 1995, Conde was placed inside an interview room and his handcuffs were removed (SR 123, 127). Detective Romangi described the room as clean, carpeted, and well-lit, with a 3x5 table and chairs (SR 122-23). Detectives Romangi and Estopinan initiated their first interview with Conde at that time. (SR 122-25). They immediately reviewed a Miranda rights warning form, reading it aloud with Conde (SR 127-28). After reading it, Appellant signed the form at 12:03 p.m. (SR 127-28).
problem communicating in English (SR 131-32). Conde told the officers that he was not intoxicated or under the influence of any alcohol, illegal narcotics or other substances (SR 129). Further, he did not have any mental problems and was not receiving any psychiatric care (SR 129-30). Conde also executed consent to search forms for his house and car, at 12:05 p.m. and 12:07 p.m., respectively (SR 138, 142-43). He later agreed to give DNA samples (blood and oral swab) (SR 144).
The interview with Detectives Romangi and Estopinan lasted a total of 12 hours, until midnight, during which time Conde was given numerous breaks, including time to use the restroom, telephone his grandmother (he spoke to her for 15-20 minutes), and to rest (SR 162, 170). Approximately 3-4 hours into the interview, Conde complained of being cold and was given a sports jacket to wear (SR 225). Conde did not thereafter complain about being cold (SR 263). The detectives also bought Conde a hamburger and french fries, which he ate in the interview room (SR 161). Several hours into this first interview, the detectives discovered that Conde was being represented by an Assistant Public Defender on a separate case (robbery case) (SR 148). Upon finding the public defenders business card in Condes wallet, the detectives asked whether Conde would like to call him, to which Conde responded “no” – that he didn't wish to speak to any lawyers (SR 149-50).
to speak with the detectives about the sexual battery of GM but steadfastly denied any involvement with the homicides (SR 150, 156-57). The interview with Detectives Romangi and Estopinan ended once Conde said that he was tired (SR 166).
Conde told the detectives that he would think about what they had discussed and agreed to speak with them again (SR 166).
Sergeant Jimenez then spoke with Conde for 1 ½ hours during which Conde continued to deny any involvement with the homicides (SR 165-66). Before questioning Conde, Sergeant Jimemez offered him pastries, something to drink or to use the restroom, all of which Conde declined (SR 508). The interview ended after Conde began to cry and then became silent, non-responsive, while they were discussing his family (SR 511). Conde was then transported to the TGK holding facility, which is about 2 miles from headquarters at approximately 3:00 a.m. that Sunday, June 25,
1995. (SR 265).
Eleven hours later, at around 2:00 p.m., Sergeant Jimenez and Detective Romangi returned to the TGK facility to see whether Conde would speak with them again (SR 172, 514). Conde did not hesitate in agreeing to speak with them (SR 515).
bought him a hamburger and french fries, which Conde ate in the car (SR 174, 517-18). They arrived at headquarters at 2:25 p.m. and Conde was put in an interview room and re-Mirandized (SR 177, 517-18). He executed another rights waiver form
(SR 177). Again, Conde did not ask to speak to a lawyer;
however he did ask to speak with his family during the interview, which request was promptly granted (SR 179, 518-19).
agreed to tell the officers the truth after the phone calls (SR 520). Conde phoned his family (grandmother, wife and kids) and spoke for about 45 minutes, the conversations concluded at Conde was relieved after the phone conversations– his whole demeanor changed, he was relaxed and looked directly at the officers, making eye contact (SR 181-82, 520). Conde then began talking with the officers about the homicides and giving them details about it (SR 183-84, 520). They started talking about the homicides at about 5:00 p.m. (SR 184). Conde was not refused any personal needs request– he was allowed to use the bathroom and was given food and beverages (SR 186-87). In fact, the officers even bought Conde a chocolate cake when he asked for a piece (SR 186).
The officers did not take any notes the first time Conde confessed to the murders (SR 188-92). They were in the process of taking handwritten notes the second time around when they were told that Conde would have to be transported to the Dade County jail for a first appearance hearing the next morning (SR 190-92, 201). At that point they decided to bring in a stenographer to record the confession and at approximately 11:45 p.m., began taking a stenographic statement from Conde. (SR 193). Before giving the formal stenographic statement, Conde was re-Mirandized (SR 194, 197-99). The statement was finished near 2:50 a.m., but Conde was transported to the Dade County jail before it was transcribed (SR 193, 201). He agreed to read and sign the statement when finished, but then refused to do so once represented by counsel (SR 203, 04). Conde was represented by an Assistant Public Defender at the first appearance hearing and indicated afterwards, for the first time, that he did not want to speak with the officers (SR 204-05).
The length of Condes interrogation in the instant case does not render his confession involuntary. This Court has recently upheld the voluntariness of a confession where the defendant was subjected to a period of continuous police custody for more than 54 hours. Chavez v. State, slip opinion #SC94586 (Fla. May 30, 2002). This Court noted that the 54 hour detention did not render Chavez's confession involuntary for the following reasons: Chavez was permitted frequent breaks; he was provided with food, drink, and cigarettes (as requested) at appropriate times; his interrogation was interspersed with time away from police facilities for visits to various facilities; he was provided with a six hour rest period(during which time Chavez slept); he was given times when he was left alone for quiet reflection; and he was repeatedly given Miranda warnings, in Spanish.
Here, the longest time Conde was in continuous police custody was 16 hours on Saturday, June 24th, 1995, and he did not confess to the homicides during that time. Further, during that 16 hour period, the police provided Conde with food, drink, use of the telephone, and frequent breaks, including restroom breaks. Like Chavez, Conde was informed of his Miranda rights during that time and knowingly waived them. He was then transported to a holding facility to sleep and given an 11 hour break from interrogation. He agreed to talk to the police again the next day and was being interrogated for only about 3 hours, on Sunday, June 25, 1995, when he confessed to the murders. Importantly, more than 45 minutes of that 3 hour period was spent talking on the telephone with his family and eating a hamburger and french fries. Additionally, no personal needs request was denied to Conde. He was also re-Mirandized before the interrogation began and before making his formal statement; again, he waived his rights.
length of Condes interrogation with that of Chavez shows that Condes interrogation did not result in an involuntary confession. He was not in police custody for a long time before confessing on Sunday, June 25, 1995. His 16 hour interrogation the day before, Saturday, June 24, 1995, did not result in a confession, and was interspersed with regular breaks for food, drink, and to use the telephone and restroom.
Conde was then given an 11 hour break, during which time he was transported to the TGK holding facility, presumably for some sleep. The officers picked him up the next day, took him to McDonald's for a hamburger and french fries and then back to the interview room. Conde confessed 3 hours later, only after he spoke to his family on the telephone for 45 minutes. There was nothing cocercive about the length of Condes confession. See also Walker v. State, 707 So.2d 300, 311 (Fla. 1997) (finding a confession voluntary where the defendant was questioned for 6 hours during the morning and early part of the day, was provided with drinks and bathroom breaks, and was never threatened with capital punishment, or promised anything).
Given the overwhelming evidence establishing that Condes Appellant's confession in this case was voluntary, the authority provided by him is inapplicable. For instance, in State v.
facts are markedly distinguishable from the instant case. Initially, the actual length of Sawyer's interrogation cannot be compared to Appellant's. Sawyer was interrogated continuously over a period of sixteen hours by several cares of detectives.
Further, Sawyer suffered numerous and egregious violations of his constitutional rights. To begin with, Sawyer did not receive his first Miranda rights until four hours into the interrogation. Thereafter, the police ignored two requests for counsel and refused to stop questioning when Sawyer insisted he no longer wanted to talk and said he needed sleep.
82. No such errors occurred in the instant case.
Also, in Sawyer, the interrogation was available on tape which:
reveal[ed] that Sawyer was harangued, yelled at, cajoled, urged approximately fifty-five times to confess to an accidental killing, promised assistance... if he did "tell the truth," threatened with first degree murder and its attendant consequences if Sawyer, at 288. No such evidence was presented here.
Finally, Sawyer was sleep-deprived-- the tapes revealed "loud sounds of yawning by Sawyer as the early morning hours arrived, his protestations of wanting to sleep, to rest, to lie down, all ignored and deliberately utilized by the detectives to taunt Sawyer into confessing so that he, and they, could get some needed rest." Sawyer, at 288. Conde was not sleepdeprived, he had an 11 hour break to sleep and did not appear tired at any time.
Under the particular circumstances of this case, the mere length of time involved fails to establish that the trial court improperly denied the motion to suppress the confession.
circumstances surrounding a confession is any deception used by the police prior to the defendant confessing.
Florida courts have not generally found verbal deception to render a confession involuntary. See e.g. Bowen v. State, 565 (Fla. 2d DCA 1988). Mere verbal deception is all that Conde alleges occurred in the instant case.
Conde first complains about the homicide officers who came to arrest him, without a warrant, at his grandmother's house, for the sexual battery of G.M. Conde argues that the officers, who had just learned that Conde was the prime suspect in their serial murder investigation, had a “manifest” intent to interrogated him about the homicides and obtain a confession which they did not disclose to his grandmother upon entering her apartment.
The officers were not required to tell Condes grandmother they were planning to ask Conde about the homicides at a later time in order to obtain her consent to enter the apartment.
Warrantless arrests are authorized by section 901.15, Florida Statutes (2001), which allows a police officer who reasonably believes that a person has committed a felony to arrest that person without a warrant. See U.S. v. Watson, 423 U.S. 411 (1976)(warrant less arrest requires only probable cause). While an arrest made in a home requires a warrant to be reasonable, there are recognized exceptions to that requirement, the most common of which is consent. See Payton v. New York, 445 U.S.
573 (1980) (absent valid consent or exigent circumstances, law enforcement may not cross the threshold of a residence without (Fla.1993)(same).
Undoubtedly, Condes warrant less arrest in this case was legal. The police had probable cause to arrest Conde for the sexual battery of G.M. since the victim was found bound and duct-taped in Condes apartment and identified him as her assailant. Further, Condes grandmother con sented to the homicide detectives entering her apartment after they told her, in Spanish, who they were (SR 552). There was no testimony to the contrary at the suppression hearing. The grandmother's consent to enter her apartment is not affected by anything the officers desired to question Conde about at a later time. The fact remains that the homicide detectives did not question Conde about the homicides at his grandmother's apartment; rather, they waited until he was taken to headquarters, given his Miranda rights and had waived those rights before questioning commenced.
Conde also complains that the police exaggerated and lied about the strength of their case against him. Detective Romangi told Conde that there was an exact DNA match to him on the homicides, even though he had only a preliminary match at the time (SR 228). Misrepresentations of fact regarding the crime being investigated; however, do not render the conversation involuntary. Bowen v. State, 565 So.2d 384 (Fla. 5 th DCA 1990);
the polygraph examiner to the defendant that someone else fired the fatal shot and that the defendant's involvement would be minimize, did not render the confession involuntary).
Condes next complaint, that the police impermissibly used a customized “Christian Burial Technique,” is merit less.10 Here, none of the victims' bodies were missing; therefore, the police had no need to use that technique and did not employ that technique. What the police told Conde is that the perpetrator would be portrayed in the press as a “monster” and that he would be better off telling his “side” of the story for the press.
This was more akin to the police portray ing themselves as a “friend” of Condes, which the courts have found to be of such a low level of decent that it could not be coercive. See Cannady v. State, 427 So.2d 723 (Fla. 1983). Further, none of these ploys resulted in Conde making a statement and therefore, did not render his confession involuntary.
Propriety Of Miranda Rights.-Next, appellant argues that his confession is involuntary because he did not “knowingly and intelligently” waive his Miranda rights. This Court has repeatedly held that “a determination of the issues of both the voluntariness of a confession and a knowing and intelligent waiver of Miranda rights requires an examination of the totality The so-called “Christian Burial Technique” is used when a victim's body is missing and the police suggest that it should be found and given a proper burial. Even in cases where the “Christian” burial technique has been used, this Court has found that it did not coerced the confession or render it involuntary. See Chavez; Lukehart v. State, 776 So.2d 906 (Fla. 2000).
of the circumstances.” Lukehart v. State, 776 So.2d 906, 917 (Fla. 2000).
Conde relies upon the same facts he argued in support of his involuntary confession claim to support this argument. However, for the reasons outlined above, the trial court's finding that Conde voluntarily made his statements after validly waiving his Miranda rights, is supported by the record and must be upheld.
Condes three waiver of his rights were free choices, made with the full awareness of the rights and consequences involved.
THE VIENNA CONVENTION TREATY-Conde next complains that his confession should be suppressed because his rights under “The Vienna Convention” international treaty were violated when the police failed to contact the Columbian consulate and inform them that a Columbian citizen had been arrested and failed to inform Conde of his right to contact the Columbian consulate.
So.2d 944, 959 (Fla. 2000), this Court rejected the same claim holding that Maharaj did not have standing to raise the issue “as treatise are between countries, not citizens.” Thereafter, in Darling v. State, 808 So.2d 145, 165 (Fla. 2002), this Court noted that “[i]t is unclear that the Vienna Convention creates individual rights enforceable in judicial proceedings,” but that it didn't need to decide the issue because it did not affect the disposition of the case since Darling had failed to show that he was prejudiced by the claimed violation. Id. at 166 f.n. 19. to In so holding, this for the proposition that “it is extremely doubtful that the violation should result in the over turning of a final judgment of conviction without some showing that the violation had an effect on the trial.” Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) (noting that to establish any entitlement to relief based on the notification requirement in the treaty, a defendant must “establish prejudice” by “explain[ing] how contacting the...consulate would have changed... his sentence.” As this Court noted, “[i]t remains an open question whether the Vienna Convention gives rise to any individually enforceable rights.” U.S. v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir.
(2001). Several federal courts of appeal have considered the question but declined to address it directly. Id. However, all agree that even if the Vienna Convention does create individual rights, suppression is not an appropriate remedy for a violation of those rights. Id. See U.S. v. Chanthadara, 230 F.3d 1237, 1255-56 (10th Cir. (2000).
Appellant has not cited a case which holds that suppression of statements/evidence is an appropriate remedy for violation of “The Vienna Convention.” In fact, he cites to only one federal case in support of his argument, Faulder v. Johnson, 81 F.3d 515 (5th Cir.), wherein the State of Texas admitted that it had violated “The Vienna Convention.” Despite that admission, though, the Fifth Circuit declined to reverse the case because the evidence that would have been obtained by the Canadian authorities was the same as or cumulative to the evidence that defense counsel had or could have obtained. Moreover, subsequent to Faulder, the Fifth Circuit issued U.S. v. Jimenez- Nava, 243 F.3d 192, 198-99 (5th Cir. 2001) wherein it found that the Vienna Convention creates no individual rights and that suppression of evidence is inappropriate even if such individual rights were created.
consult with the Columbian consulate is utterly without merit. He claims that he would have invoked his right to counsel and silence upon proper advice and recommendation by the consulate; however, Conde was specifically asked whether he wanted to contact his current lawyer, an Assistant Public defender for a robbery case, and declined stating that he did not want to call any lawyers. He also waived his Miranda rights no less than 3 times before making his confession.
FIRST APPEARANCE- Conde next complains that his confession should be suppressed because he was not provided with a first appearance hearing within 24 hours of his arrest, as required by Florida Rule of Criminal Procedure 3.130 and the failure to provide that hearing resulted in his confession. See Keen v.
400 (Fla. 1987), disapproved in part on other grounds, Owen v. State, 596 So.2d 985, 900 (Fla. 1992) ("[W]ben a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of [rule 3.130] must be shown to have induced the confession.").
This Court recently rejected the same argument in Chavez v.
State, slip opinion SC94586 (Fla. May 30, 2002). In that case, Chavez argued, as does Conde, that his confession was improperly coerced through a deprivation of his right to a first appearance within 24 hours of arrest. This Court disagreed noting that “where, as here, a defendant has been sufficiently advised of his rights, a confession that would otherwise be admissible is not subject to suppression merely because the defendant was deprived of a prompt first appearance.” Id. at slip op. 39.
Relying upon its analysis in Keen, this Court noted that there is no per se rule requiring suppression of voluntary statements made after 24 hours without a first appearance.
Rather, each case must be examined individually to determine whether a violation of the rule induced an otherwise voluntary confession. This Court concluded “that the failure to provide Chavez with a first appearance within twenty-four hours after his arrest did not compel his confession,” because, “as in Keen, the record reflects that Chavez was repeatedly advised of his Miranda rights, and knowingly, intelligently, and voluntarily waived them prior to confessing.” Similarly, here, Conde was repeatedly advised of his Miranda rights before giving his statement. At the beginning of the questioning, he was advised of his rights and waived them in writing. At the same time he gave consent to search his house and car. The second day, he was re-Mirandized and again waived his rights. Finally, before giving his formal statement Appellant was re-Mirandized and again waived his rights.
voluntariness of his confession, either individually or collectively. Thus, the trial court's ruling on the motion to suppress must stand.
THE EVIDENCE WAS LEGALLY SUFFICIENT TO
ESTABLISH THE AGGRAVATORS CCP AND HAC.
There is substantial, competent evidence supporting the trial court's findings of CCP and HAC. See Hildwen v. State, 727 So.2d 193, 196 (Fla. 1998)(whether an aggravator exists is a factual finding reviewed under the competent, substantial evidence test); Gordon v. State, 704 So.2d 107 (Fla 1997);
to reweigh evidence, only to determine whether competent, substantial evidence supports the trial court's finding).
CCP- The judge's finding that the elements of “cold ness” i.e., calm and cool reflection, were met is supported by substantial, competent evidence. The trial court concluded that Conde “did not act out of emotional frenzy, panic or a fit of rage.” Rather, his “actions were spawned by his ongoing separation with his wife, Carla, which did not involve any level of intensity of emotion. It involved however the defendant experiencing feelings of sadness.” (R9 1730). In so finding, the trial court noted that Condes confession on this point was to the contrary, but rejected that as self-serving and contrary to the facts that could be inferred from the similar crimes evidence, relying upon Wuornos.
Conde attacks this finding on several grounds. First, he contends that the trial court could not reject the unrebutted testimony from his mental health experts that he was incapable of calm and cool reflection. This Court has held that “uncontroverted expert opinion testimony may be rejected where it is difficult to square with the other evidence in the case.” Morton v. State, 789 So.2d, 324, 330 (Fla. 2001), citing Foster
1010. Here, the experts' testimony of Condes inability to coolly and calmly reflect cannot be squared with the fact that Appellant went out on 6 different occasions, picked up prostitutes, brought them back to his house, had sex a couple of times and then after the sex acts were complete strangled the victims to death.
Appellant next argues that the trial court could not reject his confession as self-serving because it was uncontroverted and internally consistent. Again, the trial court was entitled to reject that portion of the confession which it found supported a lack of cool and calm reflection as self-serving and contrary to the facts that could be inferred from the similar crimes evidence. In Hertz v. State, 803 So.2d 629, 650 (Fla. 2001), this Court noted that the “cold” element is only not found if the crime is a “heated” murder of passion, in which loss of confession reveals absolutely no anger, rage or other loss of emotional control. Further, it is clear that during the lengthy struggle with Rhonda, Conde had time to reflect upon his actions. Finally, his claim that the judge's finding that Condes actions “did not involve any level of intensity of emotion” is not supported by the record, is also without merit.
Conde relies solely upon his experts' testimony and his confession in support of that argument.
The second element of CCP, a careful pre arranged plan, was found by the trial court to exist based upon the fact that all of the victims, including Rhonda, were prostitutes, all were picked up in the same part of town, taken back to Condes place for sex, strangled after the sex acts were completed, repressed and then dumped in a residential neighborhood near Eighth Street. Further, Conde wrote on the third victim's back because he wasn't receiving any publicity and wanted the police to know that the murders were connected. Conde taunted the police to “catch him if they could.” Conde argues that a finding on the second element cannot rest exclusively on collateral crimes evidence (IB 70-71). Here, the trial court's finding is based on the facts of Rhonda’s murder, which are buttressed by the other 5 crimes and admitted to in Condes confession.
The trial court's finding that the third element, “heightened premeditation,” was established is also supported by substantial, competent evidence. The trial court found that the manner of the killing here indicated heightened premeditation based on the manner in which Conde: (1) approached Rhonda from behind; (2) wrapped his arms around her neck; (3) subdued her after she initially broke free, and (4) manually strangled her with such tremendous force that it fractured her hyoid bone.
These factors, along with the similar crimes evidence, evince heightened premeditation.
The final requirement to establish CCP is that the defendant had no pretense of moral or legal justification.
Appellant does not even attempt to argue that he has a justification for a brutal murder. His argument is that the “spur of the moment decision” to begin strangling Ms. Dunn “appears to be the result of an emotional spur of the moment decision, not ‘cold ness' contemplated by CCP.” (IB-67-68).
Evidence established during the trial, proves otherwise. There is no moral or legal justification for such a horrific crime.
HAC- There is also substantial, competent evidence supporting the trial court's finding of HAC. This Court has repeatedly stated that fear, emotional strain, mental anguish or terror suffered by a victim before death is an important factor in determining whether HAC applies. See James v.
State, 695 So.2d 1229, 1235 (Fla. 1997); Pooler v. State, 704 So.2d 1375, 1378 (Fla. 1997); Preston v. State, 607 So.2d 404, 410 (Fla. 1992). Further, the victim's knowledge of his/her impending death supports a finding of HAC. See Douglas v.
540 (Fla. (1990). In evaluating the victim's mental state, common-sense inferences from the circumstances are allowed to be drawn. See Swafford v. State, 533 So.2d 270, 277 (Fla.1988)).
This Court agrees that “strangulation when perpetrated upon a conscious victim involves fore knowledge of death, extreme anxiety and fear, and that this method of killing is one to which the factor of heinous ness is applicable.” Sochor v.
State, 580 So.2d 595, 603 (Fla. 1991), rev'd on other grounds.
that this Court has held that death by strangulation is nearly per se heinous, see Hitchcock v. State, 578 So.2d 285, 692 (Fla.
(Fla. 1985), but argues it should be considered heinous only when the victim was conscious when strangled to death, citing Overton v. State, 801 So.2d 877 (Fla. 2001). This conclusion is true, yet in Overton and here, the evidence firmly establishes that the victim was conscious when strangled to death.
Thee trial court found that the state's evidence made it clear that Rhonda was conscious of being strangled, due to the nature of the struggle which occurred. Rhonda had 30 separate fresh injuries and had been warned 36 hours before her murder about the strangler. It is clear that she fought for her life and was acutely aware of her impending death. (R9-729-30).
Rao's testimony to argue that Rhonda was unconsciousness. Rao never testified, however, with any certainty, that Rhonda was unconscious, or that the injuries to her head rendered her unconscious. (T v137 8276-7). What is certain is that Rhonda “consciously” fought with Conde; an unconscious victim does not fight with her attacker. See Tompkins v State, 502 So.2d 415 (Fla. 1986)(finding death by strangulation is not instantaneous and evidence of struggle supports finding of HAC).
Rhonda was not only conscious, but struggling and fighting to get away from Conde. Dr. Bell testified that it takes 3-4 minutes to strangle someone to death. It is not known for certain how long the struggle lasted here but it was surely enough time for Rhonda to suffer extreme anxiety and fear.
POINT IX
THE TRIAL COURT PROPERLY EVALUATED AND
REJECTED THE STATUTORY AND NON-STATUTORY
MITIGATION OFFERED (restated).
is Condes position that the trial court erred in rejecting his statutory mitigation of (1) extreme emotional or psychological disturbance, (2) capacity to appreciate the criminality of his conduct or the conform his conduct to the requirements of the law was substantially impaired, and (3) his non-statutory mitigation involving Condes “family background” factors (IB 76-88). A review of the record reveals that the trial court's conclusions are supported by competent, substantial evidence and that this Court should affirm Condes sentence of death.
Mitigators are "established by the greater weight of the evidence." Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990);
Nibert v. State, 574 So. 2d 1059, 1061 (Fla. 1990)(finding judge may reject mitigator if record contains competent substantial evidence supporting decision). In Campbell, this Court established relevant standards of review for mitigators: (1) whether a circumstance is mitigating is a question of law, subject to de nov review; (2) whether a mitigator has been established is a question of fact, subject to the competent substantial evidence standard; and (3) the weight assigned to a mitigator is within the judge's discretion, subject to the abuse of discretion standard. See, Kearse v. State, 770 So.2d 1119, 1134 (Fla. 2000) (observing whether mitigator exists and weight to be given it are matters within sentencing court's discretion); Trease v. State, 768 So.2d 1050, 1055 (Fla. 2000) (preceding in part from Campbell; holding that though judge must consider all mitigators, “little or no” weight may be assigned).
propriety of the trial court's rejection of mitigation. Thus, the standard of review is the competent, substantial evidence test where an appellate court is to pay overwhelming reference to the trial judge's ruling. Guzman v.
State, 721 So.2d 1155, 1159 (Fla. 1998).
warranted simply because an appellant draws a different conclusion.” Sireci v. State, 587 So.2d 450, 453 (Fla. 1991); Stano v. State, 460 So.2d 890, 894 (Fla. 1984).
Resolution of evidentiary conflicts is the trial court's duty;
“that determination should be final if supported by competent, substantial evidence.” Id.
Conde maintains that the trial court erroneously rejected his claim that the murder was committed under the influence of extreme mental or emotional disturbance (IB 76). While the statutory mitigator was rejected, the trial court found that the evidence supported non-statutory mitigation and gave that factor little weight (T 1744-45) However, in rejecting the statutory mitigator, the trial court examined the evidence presented by Drs. Golden and Berlin along with Olga Hervis and Condes family and friends (T 1733-38). It was the trial court's opinion that Condes full scale I.Q. of 109, his ability to hold two jobs, have a good employment record, and maintain good relationships with his family, friends, and co-workers all indicated that there was no extreme mental or emotional disturbance supporting the statutory mitigator even “assuming the defendant was experiencing some form of depression.” (T 1735). This is supported by the record which reveals that family and friends merely noted that Conde seemed depressed or sad at his separation from his wife and children. None reported a major change in Condes personality, especially one which could be described as extreme (T 8062-64, 8068-70, 8075, 8085-87, 8090-
95, 8097-107, 8110, 8124-26, 8133, 8135-39, 8154-55, 8174-78,
8180-86). Wuornos, 644 So.2d at 1010 (noting the even uncontroverted testimony can be rejected where it does not square with case facts); Walls v. State, 641 So.2d 381, 390 (Fla. (1994) (recognizing that expert testimony, even if uncontroverted, is not binding on court and its weight/force diminished were factual support is lacking). Because those who inter acted with Conde near the time of the murders reported that he was functioning well, although a little depressed, under cut completely the opinions of doctors who interviewed Conde some four years after the murder while he awaited trial on firstdegree murder charges. Likewise, the report of Olga Hervis, relating hearsay, rumor and innuendoes of abuse and a difficult childhood could be rejected in light of the eye-witness testimony of friends and co-workers who reported Conde was acting normal. As such, the trial court's decision to reject the mitigation of extreme mental or emotional disturbance has record support and should be affirmed.
trial court's rejection of the mitigator substantial impairment in capacity to appreciate criminality or conform conduct to requirements of the law, the Court will find that the trial judge's decision is supported by substantial competent evidence. Affirmance is required.
the trial court found, Condes behavior and actions belie a finding of substantial impairment. Condes actions show that he knew that his actions were wrong. This is established when he wrote on the back of his third victim “catch me if you can.” Clearly, Conde knew that such was a crime and was taunting the police to find him, if they could. However, to avoid the risk of detection, Conde took Rhonda to the safety and secrecy of his home rather than having sexual relations in an open car. Similarly, he bound and duct taped GM so that she could not escape while he attended to his court appearance for an unrelated robbery charge. Further, Conde selected Rhonda because she worked alone, making it easier to avoid detection and capture. Moreover, Condes ability to maintain to jobs where he inter acts with customers and co-workers on a daily basis without killing, shows that he is able to conform his conduct to the requirements of law. In spite of the defense experts' opinions to the contrary, Condes actions show that he knew that murder was criminal. Rose v. State, 787 So. 2d 786, 802 (Fla. 2001) (finding no error in rejecting mental mitigator where state under mined mental mitigation and impeached defense expert); Knight v. State, 746 So. 2d 423, 436 (Fla. 1998) (concluding there was no error in judge's rejection of mental mitigation where court weighed evidence presented and resolved conflicts against defendant).
final challenge is to the trial court's rejection of “family background” factors (IB 86). Here the trial court concluded that the evidence was conflicting. The fact finder's duty is to resolve such conflicts. Sireci, 587 So.2d at 453 (reasoning that whether a mitigator is established lies with the judge and “[r]ever sal is not warranted simply because an appellant draws a different conclusion”); Stano v. State, 460 So.2d 890, 894 (Fla. 1984) (recognizing that resolution of evidentiary conflicts is trial judge's duty and his “determination should be final if supported by competent, substantial evidence”).
a violent unsafe and unstable environment while living in Columbia as a child”, the trial court noted that although Condes mother had died when he was an infant and his father was living in the United States, both his grand mothers actively cared for and raised him and provided school ing, housing, food, and clothing (T 8330-31, 8335-42, 8362, 8375-76, 8443, 8463). Specifically, there was testimony that Condes paternal uncle provided him with a “wonderful and loving” home that included a maid and private schools (T 8463, 8903-05, 8711-12, 8716, 8905). Condes Uncle Carlos treated him as “a golden child,” and was loving. Aside from providing money, Uncle Carlos protected Conde from those who might have harmed him (T 8716-21, 8895-97). The sexual abuse that Conde alleges he suffered by Uncle Carlos was never confirmed (T 8721-22).
Regarding the mitigator that Conde was “repeatedly abandoned his father during his life,” there was, again, conflicting testimony. Although Condes father moved to the United States and left his children in Columbia, he did return annually for visits and periodically sent money (T 8443-44). Eventually Condes father had he and his sister come live with him, their step-mother and step-brother and sister (T 8202-05). Condes former step-mother Irene, described his relationship with his father as loving and caring, his father never abused him (T
8216-17).
THE TRIAL COURT CORRECTLY EXCLUDED CERTAIN EVIDENCE.
Appellant argues that the trial court erred by denying him the right to present to the jury testimony from jail Chaplain Bizarro that Conde had confided in him, in 1995, that he was sexually abused as a child. This was intended to rebut the allegation that Condes claim of sexual abuse to Dr. Hervis was recently fabricated. Because Chaplain Bizarro was not listed as a witness, and only revealed 4 days into the penalty phase, the trial court was correct to find a discovery violation and that the state would be prejudiced. This Court should affirm.
When the trial court is given notice of an alleged failure to disclose witnesses, it has a duty to conduct an inquiry as to the nature of the violation to determine whether the violation was willful or inadvertent and whether there was undue (Fla.1971); Webber v. State, 510 So.2d 1210, 1211 (Fla. 2d DCA 1987). Such an inquiry took place in this case, and the trial court determined there had been a Richardson violation (T 8579-
89, 9022-23).
The trial court's decision on a Richardson hearing is subject to reversal only upon a showing that it abused its (Fla.1991). The trial court did not abuse its discretion in this case in excluding Chaplain Bizarro's testimony11 on the ground that the State would be prejudiced because they were 4 days into the penalty phase. Finally, Chaplain Bizarro did testify at the Spencer hearing. Thus, any alleged error does not warrant reversal.
THE DEATH SENTENCE IS PROPORTIONAL IN THIS CASE
The State submits that Appellant's sentence of death is proportional. The trial court found the existence of three (3) aggravating factors and applied great weight to each of them:
(1) prior violent felony; (2) HAC and (3) CCP. The trial court found only one (1) statutory mitigating factor, “no significant prior criminal history,” and gave it mode rate weight. The trial court gave mode rate weight to the following non-statutory mitigating factors: (1) Condes employment background; (2) Condes family background; and (3) Condes relationship with his children. He gave little weight to the non-statutory mitigators of (1) being a model inmate, and (2) the fact that Conde will According to defense counsel, the alleged disclosure to the Chaplain occurred in 1995-96 but he was not put on the witness list until December 9, (1999).
be imprisoned for the rest of his life.
As this Court has repeatedly held, the weighing process is not a numbers game. Rather, when determining whether a death sentence is appropriate, careful consideration should be given to the totality of the circumstances and the weight of the aggravating and mitigating circumstances. Floyd v. State, 569 So.2d 1225, 1233 (Fla. 1990). Here, the evidence established that Appellant lured Rhonda, a prostitute, to his apartment, had sex with her twice and then manually strangled her to death after a violent, lengthy struggle. Appellant had murdered 5 other prostitutes prior to Rhonda in exactly the same manner.
To mitigate this senseless murder, Appellant presented the testimony of 3 mental health experts, family, friends and coworkers. The mental health experts concluded that Conde was in the throws of a major depression at the time he murdered Rhonda and was ”in the midst of an extreme mental and emotional disturbance.” They opined that Conde “snapped” after the first victim (the male Comensana). One expert also found that Conde suffer from post-traumatic stress disorder. Condes family, friends and co-workers testified that he appeared depressed and sad.
facts or the aggravating and mitigating circumstances. Gunsby v. State, 574 So.2d 1085, 1090 (Fla.
(1991); Hudson v. State, 538 So.2d 829, 831 (Fla. 1989). Rather, as the basis for proportionality review, this Court must accept, absent demonstrable legal error, the aggravating and mitigating factors found by the trial court, and the relative weight accorded them. See State v. Henry, 456 So.2d 466 (Fla. (1984).
It is upon that basis that this Court determines whether Condes sentence is too harsh in light of other decisions based on similar circumstances. Alvord v. State, 322 So.2d 533 (Fla.
1975).
The state relies upon Blackwood v. State, 777 So.2d 399, 388-89 (Fla. 2000), in support of proportionality. In that case, the female victim was strangled and suffocated to death after a lengthy struggle. There was only
The trial court found the same statutory mitigator as in this case, “no significant history of prior criminal conduct' which it afforded “significant weight.” It also found 8 non-statutory mitigators from mode rate to very little weight. Likewise, in Sexton v. State, 775 So.2d 929 (Fla. 2000), the victim also died from strangulation. The trial court found three (3) aggravators: prior violent felony (robbery); (2) avoiding or preventing a lawful arrest; and (3) CCP. In mitigation, the trial court found one statutory mitigator, “extreme mental or emotional disturbance” and 5 non-statutory mitigators. See Overton v. State, 801 So.2d 877 (Fla. 2001)(2 victims died from strangulation and had numerous defensive wounds indicating a struggle; court found 5 aggravators-- HAC, CCP, prior violent felony, felony murder, and avoid arrest--no statutory mitigators and 2 non statutory mitigators which it accorded little weight);
Reese v. State, 768 So.2d 1057, 1058 (Fla. 2000)(finding death sentence proportion ate where there were three aggravators-- felony murder, HAC, and CCP, no statutory mitigators and seven non statutory mitigators to which the trial court assigned minimal or very little weight). Proportionality was found in all.
APPRENDI DOES NOT APPLY TO FLORIDA’S CAPITAL SENTENCING SCHEME. (Restated) Petitioner argues that Florida’s capital sentencing scheme is unconstitutional because it violates due process and the right to trial by jury. The State's first argument is that Conde has failed to preserve this issue for appeal. Although Conde challenged the constitutionality of section 921.141 below he do so in terms of his right to jury trial and did not expressly raise Apprendi. As such, he cannot raise the argument for the first time on appeal. Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).
However, if the merits are reached, Apprendi does not invalidate Florida’s sentencing scheme. This Court has squarely rejected Petitioner's arguments and the notion that Apprendi applies to Florida’s capital sentencing scheme in Mills v.
Moore, 786 So.2d 532 (Fla. 2001), Mann v. Moore, 794 So.2d 595 (Fla. 2001), Bottoson v. State, 27 Fla. L. Weekly S119 (Fla. Jan 31, 2002), and Sireci v. Moore, 2002 WL 276292 (Fla. Feb 28, 2002).
The State notes that the United States Supreme Court's decision in Ring v. Arizona, Slip Op. 01-488 (June 24, 2002), was issued on the day this brief was due to be filed. The State asserts that Ring does not apply to this case or to Florida’s capital sentencing scheme. Ring involves an Arizona statute and clearly overruled only one case, Walton. The case applies only to those states where juries are not involved. That is not Florida, we have a hybrid system. See Ring f.n.6.
CONCLUSION
WHEREFORE based on the foregoing arguments and authorities cited herein, the State respectfully requests this honorable Court to AFFIRM Appellant's convictions and sentences.
Respectfully submitted,
ATTORNEY GENERAL
Tallahassee, Florida
Assistant Attorney General Florida Bar No.: 836907 1515 N. Flagler Drive 9 Floor West Palm Beach, FL 33401
(561) 837-5000
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing “Answer Brief” has been furnished by U.S. mail, post age pre paid, to: BENJAMIN WAXMAN, Esq., 2250 Southwest Third Ave., 4th Floor, Miami, Fl. 33129 on June 24, 2002.
CERTIFICATE OF TYPE SIZE AND STYLE
In accordance with the Florida Supreme Court Administrative Order Order, issued on July 13, 1998, and mode led after Rule 28-2(d), Rules of the United States Court of Appeals for the Eleventh Circuit, counsel for the State of Florida, Appellee herein, hereby certified that the instant brief has been prepared with 12 point Courier New type, a front that is not spaced proportionately.
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC00,789
Appellant,
THE STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT,
11TH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY
REPLY BRIEF OF APPELLANT
Benjamin S. Waxman, Esquire
Specially Appointed Public Defender Counsel for Rory Enrique Conde 2250 Southwest Third Avenue, 4th Floor Miami, Florida 33129 Telephone: (305) 858-9550 Facsimile: (305) 858-7491 TABLE OF CITATIONS......................................... v
ARGUMENT AND CITATIONS OF AUTHORITY...................... 1
I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S CAUSE CHALLENGES TO DEATH-
PRONE JURORS..................................... 1
1. Prospective Juror Groom........................... 1
2. Prospective Juror Huey............................. 3
3. Prospective Juror Owens............................ 4
4. Prospective Juror Rolle............................. 5
IV. THE TRIAL COURT REVERSIBLY ERRED BY
ADMITTING VOLUMINOUS EVIDENCE OF FIVE
UNCHARGED HOMICIDES IMPERMISSIBLY
RENDERING THIS EVIDENCE A FEATURE OF THE
CASE AND DENYING THE DEFENDANT A FAIR
1. “Need” for the Collateral Crimes Evidence.............. 15
2. Tendency of Collateral Crimes evidence to Suggest Improper Bias for Deciding Case..................... 17 iii
3. Chain of Inferences Necessary to Establish the Material
4. Limiting Instructions.............................. 19
5. Harmless Error.................................. 21
V. THE TRIAL COURT REVERSIBLY ERRED IN
ADMITTING IRRELEVANT AND UNFAIRLY
PREJUDICIAL EVIDENCE............................. 22
A. The Gloria Maestre evidence........................ 22
B. The Tamiami strangler warning...................... 24
VI. THE CUMULATIVE EFFECT OF IMPROPER
PROSECUTORIAL COMMENTS DURING GUILT
PHASE OPENING STATEMENT AND CLOSING
ARGUMENT DENIED MR. CONDE A FAIR TRIAL.......... 24
VIII. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
IX. THE TRIAL COURT ERRONEOUSLY REJECTED
X. THE DEFENDANT WAS DENIED A FAIR
SENTENCING HEARING AS A RESULT OF THE
TRIAL COURT'S ERRONEOUS ADMISSION OF
COLLATERAL CRIMES EVIDENCE AND THE
PROSECUTOR'S RELATED IMPROPER
XI. THE TRIAL COURT ERRED IN EXCLUDING
CRUCIAL DEFENSE EVIDENCE OF MR. CONDE
BEING SEXUALLY ABUSED AS A CHILD................ 32
XIII. FLORIDA’S DEATH PENALTY STATUTE VIOLATES
THE UNITED STATES AND FLORIDA
CERTIFICATE OF SERVICE..................................... 36
CERTIFICATE OF COMPLIANCE................................ 36
TABLE OF CITATIONS
(Fla. 1999)................................ 26, 29 Apprendi v. New Jersey, Bottoson v. Moore, 824 So.2d 115 (Fla. 2002)................................ 34, 35 Brannen v. State, 94 Fla. 656, 114 So. 429 (Fla. 1927)............................ 28 Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984)............................. 26 Brooks v. State, 762 So.2d 879 (Fla. 2001)................................ 15, 24 Brown v. State, 728 So.2d 758 (Fla. 3rd DCA 1999).............................. 9 Bryant v. State, 601 So.2d 529 (Fla. 1992)............................ 6, 10, 11, 12 Buckner v. State, 714 So.2d 384 (Fla. 1998)................................... 26 Castro v. State, 644 So.2d 987 (Fla. 1994)................................. 9, 10 TABLE OF CITATIONS (continued)
vii TABLE OF CITATIONS (continued)
Geralds v. State, 601 So.2d 1157 (Fla. 1992)............................... 26, 27 Gill v. State, 683 So.2d 158 (Fla. 3rd DCA 1996).............................. 9 Goodwin v. State, 751 So.2d 537 (Fla. 1999)................................... 21 Guzman v. State, 721 So.2d 1155 (Fla. 1998).................................. 30 Henry v. State, 574 So.2d 73 (Fla. 1991)................................. 17, 21 Hertz v. State, 803 So.2d 629 (Fla. 2001)................................... 29 Hill v. State, 477 So.2d 553 (Fla. 1985).......................... 1, 9, 10, 11, 12 Hoskins v. State, 702 So.2d 202 (Fla. 1997)................................... 26 Johnson v. State, 660 So.2d 637 (Fla. 1995)................................. 9, 10 viii TABLE OF CITATIONS (continued)
Kearse v. State, 770 So.2d 1119 (Fla. 2000)................................... 9 Keen v. State, 775 So.2d 263 (Fla. 2000)................................... 23 King v. Moore, 824 So.2d 127 (Fla. 2002)................................... 34 Lewis v. State, 780 So.2d 125 (Fla. 3rd DCA 2001)............................. 24 Mahn v. State, 714 So.2d 391 (Fla. 1998)................................... 26 Miles v. State, No. 3D01-1671, 2002 WL 31114114 (Fla. 3rd DCA Sept. 25, 2002)...... 9 Morton v. State, 789 So.2d 324 (Fla. 2001)................................... 28 Nibert v. State, 508 So.2d 1 (Fla. 1987)..................................... 26 Oats v. State, 446 So.2d 90 (Fla. 1984).................................... 19 O'Connell v. State, 480 So.2d 1284 (Fla. 1986).................................. 12 Overton v. State, 801 So.2d 877 (Fla. 2001).................................. 1, 4 TABLE OF CITATIONS (continued)
(Fla. 1994)................................... 9, 10 Ring v. Arizona, Rodas v. State, 821 So.2d 1150 (Fla. 4th DCA 2002)............................ 12 Ruiz v. State, 743 So.2d 1 (Fla. 1999)..................................... 24 Santos v. State, 591 So.2d 160 (Fla. 1991)................................... 26 Singer v. State, 109 So.2d 7 (Fla. 1959)................................... 1, 11 Spencer v. State, 645 So.2d 377 (Fla. 1994).............................. 26, 30, 33 State v. Conde, 743 So.2d 78 (Fla. 3rd DCA 1999).............................. 15 Steverson v. State, 695 So.2d 687 (Fla. 1997)................................ 17, 20 Stoll v. State, 762 So.2d 870 (Fla. 2000)................................... 24 Thomas v. State, 419 So.2d 634 (Fla. 1982)................................... 24 TABLE OF CITATIONS (continued)
Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982)............................. 20 Wuornos v. State, 644 So.2d 1000 (Fla. 1994).................................. 20
FLORIDA RULES OF CRIMINAL PROCEDURE
FLORIDA STATUTES
OTHER AUTHORITIES
WEBSTER'S T HIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED (1986)....... 22
U. S. CONSTITUTION
Sixth Amendment......................................... 33 Eighth Amendment........................................ 33 Fourteenth Amendment..................................... 33 TABLE OF CITATIONS (continued)
ARGUMENT AND CITATIONS OF AUTHORITY1
I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S CAUSE CHALLENGES TO DEATH-
PRONE JURORS.
The state cites U.S. Supreme Court cases emphasizing the reference owed a trial judge's determination of a prospective juror's qualifications. Appellee's Answer Brief (“AB”) at 2-4. However, this and other Florida courts have articulated standards, which this court should follow, more protective of a defendant's impartial jury rights. E.g., Overton v. State, 801 So.2d 877, 890 (Fla. 2001) (“juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind”); Hill v. State, 477 So.2d 553, 555-6 (Fla. 1985) (jurors not only should be impartial “but beyond even a suspicion of partiality”); Singer v.
impartial verdict... he should be excused...”).2
1. Prospective Juror Groom: “Murder is murder.” (v99-4153). Groom Mr. Conde relies on his initial brief to address those arguments contained in the state's answer brief not addressed here.
The state nowhere con tests Mr. Condes math that reversal is necessary if the trial court erred in denying three of his cause challenges. Initial Brief
xii TABLE OF CITATIONS (continued)
openly admitted strong, pro-death bias. He flip-flipped at least twice in relating his ability to overcome it. In his first reversal, moments after denying that a guilty verdict would “automatically” result in him voting for death, AB at 5, Groom testified that “in some circumstances,” murder included, the death penalty “should be mandatory.” (v99-4153).3 When asked which types of murder would warrant automatic death, Groom flippantly retorted, “Murder is murder.” (Id.). When asked if Conde would deserve death upon a determination that he was guilty of premeditated murder, Groom responded unequivocally, “Yes....” (Id. at 4154). Groom later allowed only a “possibility,” “relatively small,” that anything about Condes life would cause him to recommend life. (Id. at 4155).
had not moments earlier strongly indicated the contrary, Groom averred that he could follow the judge's instructions about weighing aggravating and mitigating circumstances. (AB at 6). However, when asked if proof of the other five homicides would affect his ability to do the weighing, Groom equivocated: “I am not sure. I don't think so. I think I would focus on one.” (v99- Groom had already twice been explained he would be required to weigh evidence as part of the penalty phase deliberations. (v96-3506-8; v97-3877-9; v99- 4150).
xiii TABLE OF CITATIONS (continued)
4159). Asked whether the other murders would cause him to place “an almost impossible burden” on the defense to prove mitigation, he again equivocated, “I don't think so.” (Id.). Thus, there was more than reasonable doubt about Groom’s impartiality.4 Independently, Conde argued that Groom should have been excused for misrepresenting his criminal history. IB at 29. The state's response that Groom’s testimony demonstrated his truthfulness, AB at 7, is belied by the record. Having initially denied any arrests on the juror questionnaire, (v105-4950), Groom did not admit his criminal history until confronted under oath. This Metro-Dade training director's explanation that he “mislead the question” elicit ing his criminal record was unbelievable. He also falsely characterized his second degree felony arrest for dis charging a deadly missive (firearm) into a dwelling, (SR1-23-24, 28-31), as a mere pre-divorce spat. (v105-4950). These lies and omissions raised further doubts regarding Groom’s impartiality.
2. Prospective Juror Huey: “Murderers give up their right to live.” Significantly, Groom was surrounded in his family and neighborhood by law enforcement officers. (v105-4950).
xiv TABLE OF CITATIONS (continued)
an eye.” (v97-3682). Huey not only believed that “anyone that would be found guilty of taking someone else's life... gives up their right to live” and “an eye for an eye,” (v97-3682), but also that the other five homicides were “aggravating circumstances” that he could not disregard. (Id. at 3685). Although he subsequently stated he could weigh evidence “that for whatever reason qualified as a mitigating circumstance,” AB at 9, he repeated afterwards that the other five homicides would be very hard to disregard. (v97-3687).
bias to influence his recommendation was utterly insufficient to dispel the undeniably suspicion regarding his partiality. Huey believed that a convicted murderer gives up his right to live even after being advised, several times, that the penalty-phase jury would have to weigh various circumstances after the determination of guilt. (v96-3506-08; v97-3679-80).
That he later stated he would be able to weigh the evidence did not vitiate his earlier concession of pervasive bias in favor of death. See Overton, 801 So.2d at 892-3.
3. Prospective Juror Owens: Automatic death for first degree TABLE OF CITATIONS (continued)
murderers. (v98-3964).5 The state acknowledges that Owens stated he “would automatically vote for the death penalty” for first degree murder. AB at 11. It asserts, however, that she was “rehabilitated” when, in response to the trial court's efforts, she stated she “would definitely have to hear everything before [she] agreed to the death penalty.” Id. Following Owens' unequivocal statement that she would automatically recommend death, this subsequent statement conveyed nothing more than that she would hear all of the evidence before acting upon her bias and “agree[ing] to the death penalty.” (v98-3968). Given the strength and clarity of Owens' death-prone bias, it cannot reasonably be said that his subsequent statement negate the substantial doubt regarding his impartiality.
4. Prospective Juror Rolle: Death for “serial,” “cold blooded” killers.
(v98-3926). The state urges that Rolle’s testimony did not “in any manner show[] an The state argues that the trial court's asserted error in failing to strike Owens was waived because Conde gave “no specific reason why the trial court erred....” AB at 10. To the contrary, Mr. Conde explained in his brief that Owens should have been struck because “[s]he agreed... that if there were no reasonable doubt that a person committed a first degree murder, she would automatically vote for the death penalty.” IB at 31. Condes further discussion of the law requiring excusal of jurors if any reasonable doubt exists whether they possess an impartial state of mind, IB at 27-28, 33-34, clearly presented his argument in support of his first point on appeal.
xiv TABLE OF CITATIONS (continued)
commitment to vote for the death penalty upon a finding of guilt” and, instead, evinced “a willingness and a sense of responsibility to listen to all the evidence before making a sentencing determination.” AB at 13. Rolle’s testimony belies the state's argument.
True, as the state emphasized, in response to initial questioning, Rolle stated she would wait to hear the penalty-phase evidence before determining her recommendation. AB at 13. However, when confronted with her prior statement that “serial killers deserve the death penalty,” (v98-3928), Rolle expressed “a possibility” that she would recommend death “[s]imply as a result of [Conde] being convicted.” (Id.). Moreover, clarify ing her sentiments, Rolle stated that, if the evidence indicated that Conde “just grabbed these women and just strangled these women without these women having a chance, just for no reason, yes, I would say death.” (T. 3929). Further explaining, Rolle indicated that only if Conde had a reason for killing the victims, “self defense or his life was on the line or something like that,” would he say maybe life. (v98-3929-30). After explaining that such matters would be determined during the guilt phase, defense counsel further queried whether in light of that, if the jury found Conde guilty, “the ball game [would be] over” regardless of xvii TABLE OF CITATIONS (continued)
what personal reason” or what “kind of childhood” Conde had had. (T. 3930). In response, Rolle reiterated what obviously was her firmly held belief that, if Conde had murdered without a reason, she would recommend death. (v98-3930-1).
Despite these clear expression of death penalty bias, neither the trial court nor the prosecutor rehabilitated Rolle. See Bryant v. State, 601 So.2d 529, 532 (Fla.
(1992). Thus, excusal for cause was required.
5. Juror Fuentes: “[K]ill[ing] one person with premeditation... is worth the death penalty.” (v104-4903). Fuentes openly stated he would be pre disposed toward the death penalty if it were shown that Conde strangled Dunn with premeditation. (T. 4901). He also expressed his bias regarding every facet of a penalty-phase jury's task about which he was queried. (T. 4901, 4903 (would place burden on defense to persuade him not to recommend death; Condes background would carry no weight as mitigating evidence; automatic death for premeditated murder)). Fuentes expressed this strong bias after having been explained his penalty phase responsibilities several times. (v103-4805-6; v104-4896-7).
The state claims Fuentes was adequately rehabilitated. AB at 15. However, even in response to the trial court's skillful efforts to rehabilitated, Fuentes only equivocated xviii TABLE OF CITATIONS (continued)
about his ability to perform the penalty phase task: “I think I could;” “To the best of my ability;” “[I] believe [I] can.” (T. 4903). He also firmly warned that “human nature” would prevent him from completely blocking out the five uncharged murders.
(T. 4903). Given the strength of Fuentes' pro-death bias, nothing was elicited to eliminate the overwhelming doubt about his impartiality.
6. Prospective Juror Loida Hernandez6: Automatic death for first degree murderers. (v99-4168). Hernandez's rep lies to the trial court's initial questions whether she could serve as an impartial penalty-phase juror were equivocal.
Asked whether she could weigh aggravating and mitigating circumstances prior to making a sentencing recommendation, she said, “I would think so.” (v99-4161).
Asked whether, instead of automatically voting for death upon the defendant's murder conviction, she could wait until she heard the evidence, she said “I think so... I think so. I think that is the way it should be.” (T. 4162).
To defense counsel, Hernandez unequivocally said that the death penalty should Counsel was confused by the existence of several Hernandez (William, Jose, and Loida) prospective jurors and mistakenly argued that the trial court erred in denying his cause challenge of William. IB at 29-30. He intended to argue that the denial of his challenge to Loida was error as set forth in his trial court motion. (R6- 1153).
xix TABLE OF CITATIONS (continued)
be imposed “when the victim doesn't have any opportunity to say anything,” (T.
4163); and that if the defendant is convicted of first degree murder of the victim in this case, “he automatically deserves the death penalty....” (T. 4168).
Subsequently, she was unwilling or unable ever to tell defense counsel that she had the ability to recommend life in the event that mitigation was presented. All of her responses to this question were equivocal if not evasive. She said, variously, “I don't know. I guess I would have to go through and find out... I cannot make a decision right now, without nothing... I don't know. I would have to go through it and listen to what he has to say.” (T. 4168-69). The last time defense counsel asked the question, “[s]o are you saying it is a possibility” you could recommend life assuming evidence in mitigation, juror Hernandez said “I didn't say that [is a possibility].” (T.
4169).
Neither the prosecution nor the trial judge attempted to rehabilitated Hernandez.
Thus, because after unequivocally stating her belief that upon conviction Mr. Conde automatically deserved death, Hernandez could only equivocate about her ability to TABLE OF CITATIONS (continued)
serve impartially, she should have been excused.7 To support the trial court's denial of Condes motions to strike venirepersons, the state has cited Kearse, Johnson, Castro, and Reaves,8 AB at 6-7,
These cases are readily distinguishable.
In Kearse, one challenged juror expressed only his “belief in the death penalty” and “frustrations with the criminal justice system.” Id., 770 So.2d at 1129. The other juror was challenged simply because her husband was a retired police officer and she originally wanted assurances that life meant life and conjugal visits would be prohibited. Id. Subsequently, both jurors “unequivocally stated” they could be fair and impartial and follow the law. Id. By contrast, Groom, Huey, Owens, Rolle, See, e.g., Hill v. State, 477 So.2d 553, 555 (Fla. 1985) (“I think I can” not sufficient); Miles v. State, No. 3D01-1671, 2002 WL 31114114 (Fla. 3rd DCA Sept.
don't think so” in response to question whether juror's background would make it difficult to be impartial required excusal); Brown v. State, 728 So.2d 758, 759 (Fla. 3rd DCA (1999) (“I think so” was equivocal and insufficient); Gill v.
State, 683 So.2d 158, 160 (Fla. 3rd DCA 1996) (“I certainly will try” was equivocal and inadequate).
Kearse v. State, 770 So.2d 1119 (Fla. 2000); Johnson v. State, 660 So.2d 637 (Fla. 1995); Castro v. State, 644 So.2d 987 (Fla. 1994); Reaves v. State, 639 So.2d 1 (Fla. 1994).
xxi TABLE OF CITATIONS (continued)
were far more debilitating than the Kearse jurors, each made one or more unequivocal statements indicating they would necessarily recommend death. Additionally, most of them further declared that either no, or only a small, possibility existed that Condes mitigating evidence would influence their penalty-phase recommendation.
Johnson is also different. There, the defense challenged juror said she “thought and hoped” she would follow the instructions. Id., 660 So.2d at 644. This court's statement that it refused to “get bogged down in semantic arguments about hidden meanings behind the juror's words” indicates that the defendant was requesting this court to devine the juror's bias from some oblique statement. By contrast, the jurors Conde challenged clearly expressed their belief that the death penalty should automatically follow conviction for murder.
Castro and Reaves are also inapposite. In both, unlike the instant case, the challenged prospective jurors' bias - reflecting statements preceded any explanation about their penalty phase responsibilities. Castro, 644 So.2d at 990; Reaves, 639 So.2d at 4 n.6. Moreover, unlike the instant case, in Reaves the referenced challenged juror indicated throughout that he would follow the law and specifically recited, once xxii TABLE OF CITATIONS (continued)
advised, his understanding that no one could automatically be sentenced to death.
Far more persuasive are Bryant v. State, 601 So.2d 529 (Fla. 1992), and Hill
State, 477 So.2d 553 (Fla. 1985). Both cases reversed death sentences based on the trial court's failure to strike certain jurors for cause. In Bryant the challenged jurors twice stated they would automatically recommend the death sentence if they found the defendant guilty of premeditated murder. Id. at 531-2. In between, after being advised that they would have to take into account aggravating and mitigating circumstances before imposing death, the jurors stated that they could “follow these instructions.” Noting that neither the state nor the trial court asked further questions to ensure that these prospective jurors could be impartial, id. at 533, this court reversed.
555. Although the juror indicated he believed premeditated or felony murder deserved the death penalty, he denied belief that the death penalty should follow from all premeditated murders and stated that he had not associated his opinion that premeditated and felony murderers deserved the death penalty with the defendant. Id. Nonetheless, this court xxiii TABLE OF CITATIONS (continued)
found it necessary to reverse. See also Singer v. State, 109 So.2d 7, 19-25 (Fla.
(1959) (reciting standards).
Bryant and Hill, the prospective jurors Mr. Conde challenged possessed preconceived opinions and presumption concerning the appropriate punishment for a defendant proven guilty of premeditated murder. These jurors were not impartial.
Mr. Conde would have been required to overcome a preconceived opinion to earn a life recommendation. As in Bryant and Hill, reasonable, indeed overwhelming, doubt existed as to whether these jurors could have rendered impartial, penalty-phase recommendations. Accordingly, the trial court erred in failing to excuse each of them for cause.9 Although in Bryant and Hill this court reversed only the defendants' penaltyphase verdicts, the nature of the impartial juror violation Mr. Conde has shown requires reversal of his conviction, as well. Unlike in Hill, Mr. Condes complaint does not merely concern one death-prone juror who deliberated in his case. Instead, his complaint is that, as a result of the trial court's erroneous denial of numerous cause challenges and his subsequent exhaustion of all peremptory challenges, he was forced to have numerous jurors deliberate both his punishment and his guilt who he would have peremptorily struck had he not been forced to waste his peremptories on jurors the trial court should have struck for cause. (R6-1152-4). Accordingly, this error permeated guilt phase deliberations too and reversal of his conviction is necessary.
See, e.g., O'Connell v. State, 480 So.2d 1284, 1287 (Fla. 1986); Rodas v. State, 821 (continued...)
xxiv TABLE OF CITATIONS (continued)
IV. THE TRIAL COURT REVERSIBLY ERRED BY
ADMITTING VOLUMINOUS EVIDENCE OF FIVE
UNCHARGED HOMICIDES IMPERMISSIBLY
RENDERING THIS EVIDENCE A FEATURE OF THE
CASE AND DENYING THE DEFENDANT A FAIR
TRIAL.
argument is that the mountain of evidence regarding five uncharged homicides, the unfair prejudice of which overwhelmingly outweighed its relevance, impermissibly became a feature of the trial. (AB at 44-5). The state devoted only six of its fifteen page Williams Rule argument to this issue.10 Although conceding that Williams Rule evidence must be excluded where “it is unduly emphasized, resulting in prosecutorial ‘overkill,'” AB at 45, the state argues that the instant case fell within “the acceptable quantum of collateral crime evidence, and was not ‘overkill.'” AB at 46. It urges that its collateral crimes “testimony was (...continued) So.2d 1150, 1153-4 (Fla. 4th DCA 2002).
The state devoted the majority of its Williams Rule discussion to its argument that the evidence of the five uncharged homicides was relevant, see section 90.401, Fla. Stats., or “inextricably intertwined” with the charged homicide.
the contrary in his initial brief. Any relevance of this evidence does not undermine, in the least, Mr. Condes argument for exclusion.
TABLE OF CITATIONS (continued)
Id. Although the state failed anywhere to directly address the factors this court has stated must be considered in determining whether collateral crimes evidence has become an impermissible “feature” of a case, IB at 41-47, its various comments throughout this portion of its brief under score, rather than negate, the “feature” aspect of this evidence.
Clearly, the state devoted a disproportionately large number of witnesses and exhibits to the collateral crimes. IB at 37-9 & nn.11-16. It appears to concede that, based on consideration of only “the order in which the witnesses were presented, the number of witnesses who testified, [and] the number of transcript pages their testimony filled,” the collateral crimes evidence attain ted “feature” status.
Thus, the state urges this court to look, instead, to “the substance of the collateral crime evidence presented.” Id. However, nowhere does it describe or assess the substance of the challenged evidence.
Besides its sheer volume, qualitatively, the collateral crimes evidence “so overwhelmed the evidence of the charged crime” that it transcended the bounds of relevance. There was nothing “curtailed” about the state's presentation of this evidence. It introduced evidence of virtually every aspect of the collateral crimes in xxvi TABLE OF CITATIONS (continued)
way materially indistinguishable from the charged offense. Compare IB at 37-8 nn.11-15 with IB at 39 n.16. It presented every last bit of minutia from descriptions of the victims' clothing and testimony about the trace evidence (i.e., fiber, DNA, serology, and tire-print) found at the various crime scenes, to autopsy and crime scene photographs, and Condes description of his precise sexual activities (pre-and postmortem) with each victim. It spared no detail. The state's repeated, direct and indirect references to the five collateral murders during opening statements and sum mation, IB at 54-56, unduly emphasized the collateral evidence and constituted prosecutorial overkill.
The prosecution's over zealous presentation of collateral crimes evidence was particularly egregious in light of the rigor with which it opposed consolidating the six homicides for trial. Obviously favoring sequential trials to obtain multiple “bites” at the death penalty “apple,” the state “vociferously” resisted Mr. Condes efforts to reconsolidate after the court initially severed based on misjoinder, but denied Condes motion to exclude the collateral homicides from each of the murder trials. (R5-874-81;
v86-3220-7; v87-3272-87). The trial court reconsolidated reasoning that, if the evidence of all the homicides was going to be admitted at each of the sequential trials, xxvii TABLE OF CITATIONS (continued)
and Mr. Conde had waived any misjoinder, no basis for the original severance existed.
(R5-887-9; v87-3272-87). The state appealed and ultimately persuaded the Third District Court of Appeal to reinstate the original severance. State v. Conde, 743 So.2d 78 (Fla. 3rd DCA 1999).11 Having won its hard fought battle for sequential trials to secure multiple opportunities to win a death sentence against Conde, the state should not have been free to introduce evidence, and try its case, in a manner indistinguishable from how it would have proceeded had Mr. Conde been jointly tried for all six homicides.
1. “Need” for the Collateral Crimes Evidence: Although acknowledging the appropriate ness of this consideration, AB at 45-46, in perhaps a Freudian slip, the state urges that “it was necessary for the State to present each of the collateral witnesses... [i]n order to establish that Conde was the perpetrator of the five collateral crimes in this case....” AB at 46. The state's argument suggests that The Third District held that a misjoinder could not be waived by a defendant, i.e., “if the offenses cannot be joined, they cannot be consolidated....” Conde, 743 So.2d at 79. Contrary to this reasoning, a defendant can waive an objection to misjoinder resulting in a permissible, consolidated trial of misjoined offenses. See Brooks v. State, 762 So.2d 879, 889 (Fla. 2001); Fla. R. Crim. P. 3.153.
xxviii TABLE OF CITATIONS (continued)
establishing Conde was the perpetrator of the five uncharged murders had some independent relevance, as if it were a material element of the charged offense.
Furthermore, the state seems to equate “necessity” with “relevance” urging that the introduction of the evidence of the five other homicides was justified because the homicides “were relevant to establishing the pattern of Condes murders which, in turn, was vitally relevant to the state's theory of premeditation....”
Clearly, merely because particular evidence is “relevant” does not mean its introduction is “necessary.” Assuming, arguendo, it was “relevant” to identify Conde as the perpetrator of the uncharged homicides, it was certainly not “necessary” to introduce the testimony of seven to nine witnesses for each uncharged murder, and enough crime scene and autopsy photographs to comprised more than half of the exhibits introduced at trial.
Indeed, in its argument that any error in introducing extensive, detailed evidence of five uncharged homicides was “harmless,” the state argues that this evidence “did not [even] contribute to the verdict.” AB at 51. The state easily could have accomplished any legitimate objective by introducing Mr. Condes uncontradicted confession xxix TABLE OF CITATIONS (continued)
the DNA and fiber evidence which conclusively identified Conde as the perpetrator of the collateral homicides. See Steverson v. State, 695 So.2d 687, 690 (Fla. 1997) (reversing first-degree murder conviction where, though collateral offense evidence “may have [had] some limited relevancy and perhaps have been admissible [for limited purpose],... there was no justification for the admission of extensive details of this event offered by four different witnesses....”); Henry v. State, 574 So.2d 73, 75 (Fla. 1991) (reversing first-degree murder conviction where, though “[s]one reference to the [collateral] killing may have been necessary to place the events in context,... it was totally unnecessary to admit the abundant testimony concerning the details....”).
2. Tendency of Collateral Crimes Evidence to Suggest Improper Basis The state asserts, without citation or explanation, that Condes entire 175 page confession, 125 pages of which concerned the uncharged murders, (SR3-370- 496), was admissible without regard to the Williams Rule.
Conde maintains that, because he was not being tried for these other five homicides (the evidence of which ostensibly was introduced to prove “motive, intent, plan, knowledge, and the absence of mistake or accident,” AB at 37), his confession to these collateral offenses was admissible only if it was Williams Rule evidence.
Condes confession easily could have been redacted to eliminate any reference to the uncharged offenses.
TABLE OF CITATIONS (continued)
for Deciding Case: The state urges that its evidence was immune from challenge because it did not consist of prior victims' testimony. AB at 48, 49. Although somewhat different, the prosecution's collateral evidence below, including graphic details from Mr. Condes confession, testimony of various medical examiners and homicide detectives regarding all of the injuries sustained by the collateral homicide victims, evidence recovered from the crime scenes, and numerous grotesque and disturbing autopsy and crime scene photographs, (e.g., St. Exs. 6, 10, 11, 14, 16, 19, 267, 275), likely had the same “emotional impact” as victim testimony.
Chain of Inferences Necessary to Establish the Material Fact: The state introduced its collateral crimes evidence to prove a material fact many inferential steps away. Clearly, the longer the chain of inferences the state must link to establish the material fact, the more likely it is that the Williams Rule evidence impermissibly became a feature.
From the mountain of collateral crimes evidence it introduced, the state sought the jury to infer that (1) Conde was the perpetrator of the collateral homicides; (2) xxxi TABLE OF CITATIONS (continued)
these homicides constituted a related “pattern” of homicidal violence; (3) based on this “pattern,” Conde acted with premeditation in committing the uncharged homicides; (4) the killing of Rhonda Dunn was part of the same “pattern” as the other homicides; and
murder of Dunn was part of this pattern of premeditated murders, Condes murder of Dunn was premeditated. Given this long chain of inferences the state needed to establish to prove premeditation, this factor strongly supports a conclusion that the voluminous collateral crimes evidence became an impermissible feature.
4. Limiting Instructions: Although the state stressed that the trial court gave limiting instructions following the introduction of the Williams Rule testimony, AB at 46, 49, nowhere did it address their effectiveness. It did not address the trial court's failure to particularize the instruction for the specific evidence it offered, or the specific matters which the evidence was offered to prove. IB at 46. It did not address the fact that it never committed to a particular purpose for which the evidence was being offered.
The only case the state cites to suggest that a limiting instruction may vitiate any prejudice resulting from the admission of Williams Rule testimony, Oats v. State, 446 xxxii TABLE OF CITATIONS (continued)
which the instruction “sufficiently distinguished the permissible/impermissible uses of similar evidence” and was given to the jury “two different times....” By contrast, in the instant case, the trial court's repeated reiteration, 50-100 times, of an incomprehensible instruction limiting consideration of the collateral crimes evidence to a lengthy list of (predominantly irrelevant) purposes, cannot be deemed to have erased the inherently, unfairly prejudicial impact of the state's overwhelming collateral crimes evidence.
The state offers Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982), and Wuornos v. State, 644 So.2d 1000 (Fla. 1994), as cases “directly on point with this case.” AB at 49. Neither case supports the decision below. The state has failed to address the primary circumstance in Townsend which the court stated supported the trial court's ruling that the collateral crimes evidence had not become an impermissible feature: the jury acquitted the defendant of one of the charged murders to which he confessed. IB at 46 n.19 (citing Townsend,
In Wuornos, unlike the instant case, the most significant evidence against the defendant was her multiple, contradictory pre-and post-arrest confessions. There was little crime scene evidence connecting her with the charged murder. Her various xxxiii TABLE OF CITATIONS (continued)
statements and confessions contained built in defenses including intoxication and selfdefense. Id. at 1004 (“Wuornos described herself as ‘drunk royal.'”), 1006 (“Wuornos' own testimony at trial... [that the victim] viciously abused her and then engaged in actions suggesting he intended to kill her... portrayed her as the actual victim here”). Accordingly, evidence that Wuornos was involved with six other homicides was essential to rebut the defendant's testimony that she was a victim who was attacked first. Id. 1007.
The state attempts to distinguish this court's decision in Steverson v. State, 695 So.2d 687 (Fla. 1997), asserting that the collateral crime evidence was “admitted for no real purpose....” AB at 50. The state there had urged that the collateral crime evidence was admissible because it was “inextricably intertwined” with the charged crime evidence. Id. at 690. This is one of two theories upon which the state claims the collateral crimes evidence was admissible in the instant case. AB at 42-44.
Regarding Henry, the other case upon which Mr. Conde placed primary reliance, IB at 39-42, the state failed to even cite this case. Thus, the applicable case law most strongly supports a conclusion that the collateral crimes evidence became an impermissible feature at trial.
xxxiv TABLE OF CITATIONS (continued)
5. Harmless Error: In claiming harmless error, the state, in essence, argues that this court should affirm because the evidence overwhelmingly established that Conde murdered Dunn. AB at 50-51. The evidence the state cites, Condes confession and the DNA and fiber evidence, does not address the issue of premeditation. Moreover, “[even] overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached...” Goodwin v. State, 751 So.2d 537, 542 (Fla. 1999).
Henry refuses the state's harmless error argument. There, though the evidence established that the defendant stabbed his wife 13 times in the throat with a kitchen knife, hid her body under a rug in her house, and gave a detailed confession to police, the court held that collateral evidence of a single, additional killing that had become a feature of the trial constituted prejudicial, reversible error. Id., 574 So.2d at 74-75.
A fortiori, the state's collateral evidence in the instant case of five additional homicides constituted prejudicial, reversible error.
V. THE TRIAL COURT REVERSIBLY ERRED IN
ADMITTING THE GLORIA MAESTRE AND TAMIAMI
STRANGLER WARNING EVIDENCE.
TABLE OF CITATIONS (continued)
A. The Gloria Maestre evidence.
support a the trial court's ruling, the state has quoted familiar definitional language for inextricably intertwined evidence: evidence that is “inseparably linked in time and circumstance” or “necessary to fully describe the way in which the criminal deed happened.” AB at 53. Inseparable means “incapable of being separated or disjointed.” Webster's Third New International Dictionary Unabridged 1168 (1986).
Necessary” means “essential.” See id. at 1510. The state has failed to show how the false imprisonment of Maestre six months after Dunn’s murder was “incapable” of being separated in time and circumstance from the murder of Dunn or was “essential” to describe the way in which the Dunn murder happened.
The state asserts that the Maestre evidence was “necessary to describe adequately the investigation leading up to Condes arrest and subsequent statements.” AB at 54. However, the state was not, in any way, obliged to describe or prove the investigation of Conde; it only was required to prove that he committed the premeditated murder of Dunn. The police investigation was virtually irrelevant. Keen xxxvi TABLE OF CITATIONS (continued)
So.2d 263, 274 (Fla. 2000).13 The state asserts that it presented only a “limited account” of the crimes against Maestre. AB at 53. To the contrary, the state introduced evidence of wholly gratuitous details including that Maestre, half nude, was wrapped from head to toe with duct tape, Fire Rescue personnel had to break down Condes door to free her, and she was frightened when she was found. IB at 48. These details had no bearing on the charged offense. This incident, which the state unnecessarily referenced in sum mation, (v128-7806), proved neither Condes motive nor intent to murder Dunn six months earlier. AB at 55. Despite Condes confession and the other evidence connecting him to Dunn, it cannot be said beyond reasonable doubt that this highly inflammatory evidence did not play a substantial part in the jury's deliberations and contribute to its verdict.
The state argues that this court's cases culminating in Keen are inapplicable because the evidence erroneously introduced to explain the sequence of events leading up to the investigation and arrest was hearsay while in the instant case it was not. AB at 55. The significance of Keen is its recognition that “an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case.”
xxxvii TABLE OF CITATIONS (continued)
B. The Tamiami strangler warning.
prove Condes premeditation, to rebut a defense raised by Conde, or to any other issue in this case. See Brooks v. State, 787 So.2d 765,770-1 (Fla.
(2001); Stoll v. State, 762 So.2d 870, 874-5 (Fla. (2000). Introduction of this highly inflammatory evidence constituted reversible error.
VI. THE CUMULATIVE EFFECT OF IMPROPER
PROSECUTORIAL COMMENTS DURING GUILT
PHASE OPENING STATEMENT AND CLOSING
ARGUMENT DENIED MR. CONDE A FAIR TRIAL.
at 58-9, the state has completely ignored this court's declaration in Ruiz v. State, 743 So.2d 1, 7 (Fla. 1999), that, where defense counsel objects to some improper arguments but not others, if the properly preserved errors combined with the additional acts of misconduct compromised the integrity of the judicial process, reversal is necessary. Accord Lewis v. State, 780 So.2d 125, 129 (Fla. 3rd DCA 2001). Moreover, the trial court's repeated denials of Condes innumerable written and oral complaints about the state introducing evidence of, or basing any part of its prosecution on, the five collateral homicides, established that the xxxviii TABLE OF CITATIONS (continued)
trial court was well aware of Condes objection and that any further assertion of it would have been futile. See Thomas v. State, 419 So.2d 634, 635 (Fla. 1982).
Regarding Mr. Condes charge that the prosecutor, in both opening and sum mation, repeatedly attacked his character and urged conviction based on the uncharged offenses, IB at 54-7, the state asserts that the challenged remarks were merely “a description of what happened and an outline or pre view of what the evidence would show,” AB at 60, did not “directly refer[] to or mention[] Conde,” AB at 61, and were “not directly linked to Conde and w[ere] simply a reference to the man who had killed these victims.” Id. at 62. The state's response is unrealistic and unsupported.
prosecutors repeated references to Conde as “the Tamiami strangler,” “their attacker,” and “their killer,” and his numerous, similar characterization of Conde and his offense as encompass ing all six murders, the state portrayed Conde as a serial murderer, not simply the premeditated murderer of Dunn. The prosecutors remarks that Conde “did that six separate times to six different people,” killed Dunn “just like the others,” and that Condes “thing” was going “out hunting for victims,” painted a vivid picture of a serial killer, one fundamentally different from the sole xxxix TABLE OF CITATIONS (continued)
allegation before the jury that Conde had murdered Dunn with premeditation. The prosecutors use of this rhetoric throughout his arguments improperly assassinated Condes character and overly, and covertly, urged the jury to convict based on the uncharged murders.
Regarding the prosecutors attacks on defense counsel, IB at 57, the state respond that this was “fair reply” to defense counsel's comments on the mistakes of law enforcement personnel and attack on the credibility of the physical evidence. AB at 65. To the contrary, while it was entirely appropriate for defense counsel to highlight law enforcement mistakes and to urge that these errors created reasonable doubt, it was unethical and impermissible for the prosecutor to disparage defense counsel and suggest that he was attempting to mislead the jury. See Adams v. State, This was not fair reply. Accordingly, the prosecution's pervasive, egregious misconduct throughout guilt phase opening and sum mation compromised the integrity of the judicial process, severely prejudiced Conde, and requires a new trial.
VIII. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
TABLE OF CITATIONS (continued)
two case are exactly alike. Nonetheless, Mr. Conde cited at least eight cases in support of his argument in which this court reversed the lower court's finding of CCP. 14 The state has chosen not to comment on any of these cases. Mr. Conde maintains that this constellation of cases mandates a determination that the evidence was insufficient to establish CCP.
Acknowledging that the trial court's opinion regarding CCP was contrary to the unrebutted testimony of three mental health experts, the state urges that the trial court was free to reject the expert testimony if it was “difficult to square with the other evidence in the case.” AB at 85. Without explanation, the state asserts that the experts' testimony of Condes inability to cool and calmly reflect could not be squared with the fact that he committed these six murders. Id. The state's circular reasoning is unpersuasive. The murders themselves provided only circumstantial evidence of premeditation which, at best, was “susceptible to... divergent Almeida v. State, 748 So.2d 922, 932-3 (Fla. 1999); Buckner v. State, 714 So.2d 384, 389 (Fla. 1998); Crump v. State, 622 So.2d 963, 972 (Fla. 1993); Geralds
v. State, 601 So.2d 1157, 1163-4 (Fla. 1992); Hoskins v. State, 702 So.2d 202, 210 (Fla. 1997); Mahn v. State, 714 So.2d 391, 398-9 (Fla. 1998); Nibert v. State, 508 So.2d 1, 4 (Fla. 1987); Santos v. State, 591 So.2d 160, 162-3 (Fla. 1991); Spencer
v. State, 645 So.2d 377, 384 (Fla. 1994).
xli TABLE OF CITATIONS (continued)
interpretation....” Geralds v. State, 601 So.2d 1157, 1164 (Fla. 1992).
Additionally, the experts, themselves, uniformly and persuasively testified how Condes criminal acts were fully consistent with his unreflective state of mind. (v141- 8831-5, 8849-50; v142-8659-62, 8976). Additionally, even the trial court acknowledged that the expert testimony was consistent with Rory’s uncounseled, state-endorsed confession indicating Dunn’s murder was not planned but, instead, the result of uncontrolled rage. (R9-1730; v126-7392, 7411, 7439-42, 7459, 7475-6, 7479, 7487). Finally, the cases the state has cited fail to support its argument. E.g., Morton
324, 330-1 (Fla. 2001) (no basis for trial court to have rejected expert testimony); Foster v. State, 679 So.2d 747, 755 (Fla. 1996) (expert testimony that defendant was under influence of extreme mental or emotional disturbance and capacity to conform his conduct to requirements of law was substantially impaired at time of murders properly rejected where defendant twice expressed his intent to kill intended robbery victims if they had no property prior to confronting them and trial court gave expert testimony weight in support
The state challenges Condes argument that the trial court could not reject his uncounseled, internally consistent, and state endorsed confession. AB at 85. The fact xlii TABLE OF CITATIONS (continued)
support the trial court's rejection of it. See Brannen v. State, 94 Fla. 656, 661-2, 114 So. 429, 430-1 (Fla. 1927).
Regarding the state's claim that rejection was proper because the confession was contrary to facts that could be inferred from the similar crimes evidence, Mr. Conde maintains that his confession, reflecting that his murder of Dunn was the result of “emotional frenzy” or a “fit of rage” that overtook him the moment he strangled Dunn, was entirely consistent with the similar crimes evidence. (v126-7380, 7392, 7404, 7411, 7441, 7459, 7492). Thus, indeed, his confession did reveal “anger, rage, or other loss of emotional control.” AB at 85. Although the state claims that “Conde had time to reflect upon his actions... during the lengthy struggle with Rhonda,” AB at 85-6, the evidence demonstrated that this struggle may have been of short duration, (v117-6398-6401; v124-7169-70), and was too fast moving for careful reflection.
635-6, 650 (CCP aggravator upheld where robbery victims murdered execution-style after being bound and gagged for two hours); cf. Almeida, 747 So.2d at 931-3 (CCP rejected where evidence established defendant had “cal med down” in the hours between anger xliii TABLE OF CITATIONS (continued)
provoking conduct of victim and (murder).
Ignoring the cases cited by Mr. Conde regarding “heightened premeditation,” IB at 71, the state primarily urges that the manner of Conde killing Dunn, i.e., approaching her from behind, wrapping his arms around her neck, subduing her after she initially broke free, and manually strangling her with such force that it fractured her hyoid bone, evinced heightened premeditation. Clearly, there is nothing to distinguish these circumstances from an unaggravated, premeditated murder. Even the similar crimes evidence fails to exclude the reasonable hypothesis that Conde was overcome by a fit of rage at the moment he strangled and killed Dunn.
xiv TABLE OF CITATIONS (continued)
IX. THE TRIAL COURT ERRONEOUSLY REJECTED
STATUTORY AND NON-STATUTORY
The state urges that this court must pay “overwhelming reference” to the trial court's ruling. AB at 90. This supposed standard appears nowhere in Guzman v.
State, 721 So.2d 1155 (Fla. 1998), cited by the state, nor in any other case counsel has found. Instead, a trial court must find a mitigator “[w]whenever a reasonable quantum of competent, uncontroverted evidence of mitigation has been presented,” Spencer
not be rejected unless “the record contains competent substantial evidence to support the... rejection.” Id.
The state points to Condes IQ, favor able employment record, and good relationships as evidence contradicting the unanimous opinion of three mental health experts that Conde suffered from an extreme mental or emotional disturbance at the time Conde murdered Dunn. AB at 91. There was no testimony that these circumstances were inconsistent with the experts' opinions. Indeed, Golden, Berlin, and Hervis each testified that these circumstances were entirely consistent with Rory’s profile. IB at 77-8, 83. The state urges that family and friends “merely noted that Conde seemed depressed or sad,” but never indicated there were “major” or TABLE OF CITATIONS (continued)
the contrary, the record is replete with testimony regarding Rory’s appetite/weight loss, inexplicably crying, and loss of attention to personal hygiene, all of which corroborated the existence of a major depression. IB at 78 & n.30. Thus, factual support for the three experts' opinions of Condes extreme emotional and psychological disturbance not only was “not lacking,” it was abundant and persuasive.15 The state urges that the trial court properly rejected Mr. Condes proffered nonstatutory mitigators because “the evidence was conflicting.” AB at 93. A careful examination of the mitigators Conde proffered and the evidence bearing on these factors demonstrates that they were largely supported by substantial, uncontradicted evidence that the trial court was not free to reject. IB at 86-8.
X. THE DEFENDANT WAS DENIED A FAIR
SENTENCING HEARING AS A RESULT OF THE
TRIAL COURT'S ERRONEOUS ADMISSION OF
COLLATERAL CRIMES EVIDENCE AND THE
RELATED IMPROPER Significantly, not only did the experts find independent support for their opinions at the time they interviewed Conde and other relevant witnesses, but numerous witnesses testified about observations and information contemporaneous with Dunn’s murder that reflected Condes severe emotional and psychological disturbance.
xlvi TABLE OF CITATIONS (continued)
The fatal vice of the prosecutors penalty phase sum motion, to which Conde objected two out of three times, was referring to him as a serial killer. (v143-9095, 9153). By over ruling Condes objections, the trial court placed its imprimatur on these characterization. Clearly, any objection to the prosecutors third, related malfeasance, “[a]nd he killed, and he killed, and he killed,” (v143-9102), would have been futile.
The state urges that this issue is merit less because evidence of the five uncharged homicides was not introduced at the penalty phase and the jury was instructed not to consider them. AB at 36 n.3. However, Mr. Conde maintains that by the prosecutors repeated characterization of Conde as a serial killer during penalty-phase sum mation, the state resurrected the uncharged murder evidence from guilt-phase and effectively rendered it a labor ing boar in the penalty-phase deliberations.
Accordingly, these highly inflammatory exhortations deprived Conde a fair sentencing hearing.
XI. THE TRIAL COURT ERRED IN EXCLUDING
CRUCIAL DEFENSE EVIDENCE OF MR. CONDE
BEING SEXUALLY ABUSED AS A CHILD.
xlvii TABLE OF CITATIONS (continued)
Chaplain Bazarro’s excluded testimony that in 1995, shortly after Rory’s arrest, Rory confided that he had been sexually abused as a child, was crucial to Condes penalty phase defense. As the state urged in penalty phase closing, the issue of whether Rory had been sexually abused as a child “was almost the entire crux of the defense case.” (v143-9101). Given, especially, the trial court's finding that the defense failure to list Bazarro as a witness until the commencement of penaltyphase proceeding, was inadvertent, (v140-8588), the court's findings that the state would be prejudiced, the statement was self-serving, and it was cumulative, (T. 8588- 9), were utterly inadequate to justify impinging Condes6th, 8th, and 14th amendment rights by its exclusion.
Any prejudice the state would have suffered by Bazarro’s testimony contradicting its opening statement was negligible. Attorneys often err in their opening statement predictions of what the evidence will be or show. This must be balanced against the substantial prejudice Conde suffered by being stuck with the prosecution's false depiction that his claim of childhood sexual abuse was belated, and thus fabricated. (v135-7977). That Condes statement to Bazarro was “self-serving” is no more valid a consideration than a defendant's claim that prosecution evidence should xlviii TABLE OF CITATIONS (continued)
be excluded because it is “prejudicial.” If admitted, the prosecutor could have argued that Condes statement to Bazarro should be dis believed on this basis. Finally, contrary to the trial court's finding, Bazarro’s testimony was not simply “cumulative” of Hervis' testimony. Bazarro’s testimony did not suffer from the defect which the state urged rendered Hervis' recounting of Condes childhood sexual abuse unworthy of belief: Condes convenient recent disclosure.
Contrary to the state's argument, that Bazarro testified at the Spencer hearing did not render exclusion of his testimony from the penalty-phase harmless.
Had the evidence of Condes childhood sexual abuse been strengthened with Bazarro’s testimony, not only would it have solidified the apparently rejected expert opinions that Conde suffered from an extreme emotional or psychological disturbance, it also may have independently persuaded the jury of the non-statutory mitigator of childhood sexual abuse. The state should not have been permitted to benefit from exclusion while arguing that the issue of whether Rory had been sexually abused as a child was “the crux of the defense case.” Accordingly, exclusion was an abuse of discretion and devastatingly prejudicial to Conde.
XIII. FLORIDA’S DEATH PENALTY STATUTE VIOLATES xlix TABLE OF CITATIONS (continued)
THE UNITED STATES AND FLORIDA
CONSTITUTIONS.
Since the filing of Condes Initial Brief, the United States Supreme Court 530 U.S. 466 (2000), to invalidate Arizona’s judge-based capital sentencing procedure.
While the state asserts that Ring does not apply to Florida’s “hybrid system,” AB at 100, the Ring opinion leaves substantial doubt regarding the state's conclusion.
Indeed, this court's grant of stays of execution to evaluate the impact of Ring on Florida’s capital punishment scheme suggests its applicability. See Bottoson v.
Moore, 824 So.2d 115 (Fla. 2002); King v. Moore, 824 So.2d 127 (Fla. 2002).
Mr. Conde maintains that, for the reasons explained in his initial brief, IB at 94- 96, and which compelled the decision in Ring, section 921.141 is unconstitutional.
With regard to the particular constitutional concerns that drove the decision in Ring, Florida’s death penalty procedure is largely indistinguishable from the now defunct Arizona scheme. Like Arizona, the jury makes no findings of fact that justify aggravating the presumptive life sentence for a premeditated murder to death. See §775.082, 921.141 Fla. Stats. It is the trial judge that makes these findings.
TABLE OF CITATIONS (continued)
Additionally, even the jury's general recommendation of death, for whatever its constitutional value, is not required to be unanimous. (Condes jury voted nine to three for death.) Finally, the Florida penalty-phase jury's recommendation is only advisory. Ultimately, the final decision maker, as in Arizona, is the judge. See Bottoson, 824 So.2d at 120-122 (Pariente, J., concurring). Thus, Florida’s death penalty scheme must fall with Arizona’s and Condes death sentence must be reversed.
Respectfully submitted,
2250 Southwest Third Avenue, 4th Floor Miami, Florida 33129
Florida Bar No. 403237
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by United States mail this ____ day of October, 2002, to: Debra Rescigno, Assistant Attorney General, Office of the Attorney General, Criminal Division, 1515
N. Flagler Drive, 9th Floor, West Palm Beach, FL 33401-5099.
TABLE OF CITATIONS (continued)
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the front requirements of Florida Rule of Appellate Procedure 9.210(a)(2).
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-1998
LOWER TRIBUNAL CASE NO. F95-019816
RORY ENRIQUE CONDE, Appellant, STATE OF FLORIDA, Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
Gustavo J. García-Montes Florida Bar No. 986320 Registry Counsel 2333 Brickell Avenue - Suite A-1 Miami, FL 33129 Tel. (305) 666-2880 Fax (786) 662-3011 ggm@agmlawgroup.com Counsel For Appellant
PRELIMINARY STATEMENT
This proceeding involves an appeal of the circuit court's denial of Rule 3.851 relief. The trial court denied all of Mr. Condes claims after a hearing, and had previously denied some of Mr. Condes claims during the Huff hearing. The following symbols will be used to design ate references to the record in this appeal:
"R" -- record on direct appeal to this Court; "Supp. R" -- supplemental record on direct appeal; "PCR." -- record on post conviction appeal;
REQUEST FOR ORAL ARGUMENT
The Appellant, Rory Conde, suggests that the facts and legal arguments are adequately presented in this brief and does not request oral arguments.
I. THE TRIAL COURT ERRED WHEN IT DENIED CLAIM III INSOFAR THE
TRIAL COUNSEL'S FAILURE TO PRESERVE THE RECORD ON APPEAL
AND OBJECT TO IMPROPER PROSECUTORIAL COMMENTS DURING
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
USE OF THE DEFENSE EXPERT, MANUEL ALVAREZ, INSOFAR TRIAL
COUNSEL'S FAILURE TO DISCOVER MITIGATING EVIDENCE
III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S CLAIM IV
WHERE THE TESTIMONY OBTAINED DURING THE EVIDENTIARY
HEARING CLEARLY SHOWS THAT TRIAL COUNSELS KNEW OR
SHOULD HAVE KNOW OF THE EXISTENCE OF BOTH THE ABUSE AND
CHAPLAIN BIZARRO WELL IN ADVANCE OF THE MIDDLE OF THE
SENTENCING DATE
IV. MR. CONDE 'S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION WERE VIOLATED DUE TO THE
FALLOUT EFFECT OF THE WITHDRAWN PLEA AS IT AFFECTED HIS ABILITY
TO COLLECT AND PRESENT MITIGATING INFORMATION DURING HIS
SENTENCING PHASE. AS A RESULT, THE DEATH SENTENCE IS UNRELIABLE.
V. THE TRIAL COURT ERRED IN DENYING CLAIM VI OF
APPELLANT'S POST CONVICTION PLEADING AS THE FLORIDA CAPITAL
SENTENCING PROCEDURES ARE UNCONSTITUTIONAL AS EMPLOYED IN MR.
Cases Statutes Rules Treatises ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
STANDARD OF REVIEW
A post conviction defendant sentenced to death is entitled to an evidentiary hearing unless the response and record conclusively show that the defendant is entitled to no relief.
This Court encourages trial courts to conduct evidentiary hearings on initial post conviction motions in capital cases. See Finney v. State, 831 So.2d 651, 656 (Fla. 2002). The rules of procedure provide that such a hearing "shall" be held in capital cases on initial post conviction motions filed after October 1, 2001, "on claims listed by the defendant as requiring a factual determination." See Finney, 831 So.2d at 656; see also Fla.R.Crim.P.3.851(f)(5)(A)(i). Upon review of a trial court's summary denial of post conviction relief without an evidentiary hearing, the reviewing court must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record. Gaskin v. State, 737 So.2d 509, 516 (Fla. 1999) [citations and footnote omitted].
appellate court's standard of review of a trial court's ruling on an ineffective assistance claim is two-pronged: (1) appellate courts must defer to trial courts' findings on factual issues but (2) must review de nov ultimate conclusions on the performance and prejudice prong. Bruno v. State, 807 So.2d 55, 61-62 (Fla. 2001).
STATEMENT OF THE CASE
The Circuit Court for the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, entered the judgments of convictions and death sentences at issue. On July 12, 1995, Mr. Conde was indicted with six counts of first degree Murder. R. 1. After extensive litigation on the issue, Mr. Condes counts were severed. Mr. Conde went to trial on the murder case wherein the victim was Rhonda Dunn. A jury trial on one count resulted in a guilty verdict. On December 14, 1999, the jury recommended a sentence of death by a vote of nine (9) to three
each count of murder. R. 1649. At issue during the trial was the fact that a critical defense witness for mitigation, Chaplain Bizarro, was not discovered by the defense until the fourth day of the penalty phase. The court denied the defense request to allow the testimony of the witness. The Court followed the jury's recommendation and entered its sentencing order on March 24, 2000. R. 17251751. The Court sentenced Mr. Conde to death for the first-degree murder charge.
The Florida Supreme Court affirmed Mr. Condes conviction and sentence on direct appeal. Conde v. State, 860 So. 2d 930 (Fla. 2003). The United States Supreme Court denied certiorari on 04/05/2004.
1 The judgments and sentences under attack are as follows: Judgment of guilty for Count 6 (murder), sentence of death, life sentences for remaining balance.
March 24, 2005, Mr. Conde filed a motion to vacated judgment of conviction and sentence with special request for leave to amend (PCR. 68-95).
The Court held the Huff hearing on 10/12/2005, wherein it denied claim I, claim II and claim VI as being legally insufficient and procedurally barred. The court granted an evidentiary hearing. The hearings were held on August 31 and September 1, 2007.
Subsequent to the hearings, Defendant filed his notice of appeal as the denial of his motion for post-conviction relief and the instant appeal ensued.
Appellant, Rory Conde, is currently a state prisoner incarcerated “on Death Row” at the Union Correctional Institution in Union County, Florida. His prison number is
STATEMENT OF FACTS IN POST CONVICTION PROCEEDINGS
This case found its genesis in the year 1994 in Miami Dade County, when, during a period of five months, the bodies of six prostitutes were discovered on the side of a road.
Since the road is known as Tamiami Trail, and the autopsy performed on the victim's bodies showed that they had been strangled and died of asphyxiation, the killer was named by the media the “Tamiami Strangler.” In June, 1995, Rory Conde was arrested after a woman was able to escape from his apartment. Evidence found at that scene lead investigators to suspect that Mr. Conde may be the culprit of the homicides.
After a lengthy interrogation, Mr. Conde admitted to the homicides. Moreover, DNA evidence linked him to the murders. On July 12, 1995, Mr. Conde was charged through indictment in Miami-Dade County with six counts of first-degree murder. (R1-1-4) On or about August 15, 1997, the parties were engaged in plea negotiations. An agreement was reached and accepted by Mr. Conde, whereby Mr. Conde would enter guilty pleas to the six homicides and associated charges arising from some other pending cases and would be sentenced to consecutive life sentences without the possibility of parole, sparing Mr. Conde from the death penalty. The state made the representation that the victims' families and the police agencies were either in agreement with the plea offer or had no objection. The plea offer was made by Mr. Laeser, the assigned assistant State Attorney, during a meeting with Judge Margolius and Jeffrey Fink, Esq.
At a later time, the assigned assistant state attorney had a change of heart.
Additionally, the families who did appear for a hearing became adamant that Mr. Conde should receive the death penalty. (R 3,426). However, subsequent to that event, the fact that Mr. Conde had been willing to plea to a life sentence was made public in the media, causing injury to Mr. Condes ability to complete a thorough mitigation analysis. Friends and coworkers of Mr. Conde, critical witnesses for mitigation, no longer wanted to be involved and, in fact, the Defense lost touch with several that had been up to then involved.
Subsequent to this incident, Mr. Conde went to trial and was found guilty by a jury.
trial, Mr. Conde presented the testimony of three primary experts: psychiatrist Dr. Fred Berlin, (v141-8808-75), neuropsychologist Dr. Charles Golden, (v142-8924-9005) and psycho therapist/social worker Olga Hervis.
(v138-8486-8501; v140-8704). Dr. Berlin, who specialized in sexual disorders, testified that in his opinion Mr. Conde committed the murders while suffering from an incident of “major depression” with “despondency” and “agitation,” linking his condition with chronic emotional and psychological childhood abuse, exacerbated by the dissolution of his marriage. (v141-8818-23, 8826-30). Dr. Golden agreed, adding that Mr. Condes profile reflected severe childhood psychological trauma and was consistent with childhood sexual abuse. (v142-8954-5) Olga Hervis’s testimony concentrated on Mr. Condes familiar relationships. She testified that Mr. Conde disclosed that from age 6 to 12, on almost a daily basis, he was sexually molested by his uncle Carlos and Alfredo while living in Colombia (v140-8619-31).
Additionally, Mr. Condes sister, Nellie, testified to their family life in Colombia.
the father attempted to make a good home for her brother, and that their father never abused Rory. Approximately 15 other friends, neighbors, coworkers, and family members testified on Rory’s behalf regarding more than 70 proffered mitigating circumstances. (R9-1701-5) However, on the fourth day of the penalty phase proceedings, the defense proffered the testimony of Chaplain Bizarro. Chaplain Bizarro was the first person that Rory Conde came into contact after his arrest and protracted interrogation back in 1995. During this first meeting, just after his arrest, and well before meeting with any attorney, psychologist or social worker, Rory Conde bared his heart to Chaplain Bizarro and confided the sexual abuse he suffered as a child. (v140-8579-80 (proffer by counsel); v142-9014- 22 (proffered testimony of witness)). They claimed to have just discovered the existence of this witness.
The importance of Chaplain Bizarro's testimony was critical not only to corroborate Mr.
Condes claim of childhood sexual abuse, but also to rebut the state's assertion that this claim was recently fabricated. (v135-7977). The jury never heard Mr. Condes confession to Chaplain Bizarro. Inexplicably, the relevance of Chaplain Bizarro was not discovered.
During the evidentiary hearing held on this cause, the defense's first witness was Martha Galindo. Ms. Galindo is a friend of the Conde family for some 27 years. (R 846).
a frequent social visitor of Mr. Conde while he was detained at Metro-West. During these visits, Mr. Conde would often speak about Chaplain Bizarro. (R 848). In fact, Mr. Conde stated that he would speak with Bizarro almost every Saturday morning, before the social visits. As per Ms. Galindo's testimony, Chaplain Bizarro was a person of importance in Mr. Condes life and he appeared calmer after speaking with Bizarro. Ms. Galindo encouraged Mr. Conde to speak with Chaplain Bizarro
talk to the Chaplain about the incidents that occurred and for which he was being charged. (R. 850). Ms. Galindo conveyed to Laura Blankman, the investigator working with the Defense, Mr. Condes developing relationship with Chaplain Bizarro. (R 849). Ms. Galindo testified that she never met with Mr. Rafael Rodriguez nor with Mr. Jeffrey Fink, Appellant's mitigation and lead attorneys respectively. (R. 850). Ms. Galindo testified that after the aborted plea offer she was disillusioned with the case and the process. Prior to the incident where the plea offer, Ms.
Galindo worked towards helping the Conde family and assisting with the critical task of locating witnesses. (R. 852). Subsequent to the incident regarding the plea, an event that was publicized in the newspaper, Ms. Galindo testified that “nobody wanted to know about the case.” (R. 853). She herself stopped trying to locate or find witnesses, and “completely disconnected from the system.” (R. 853). Ms. Galindo also stopped attempting to meet with Mr. Condes attorneys. (R. 854). Ms. Galindo testified that she knew of the sexual molestation that Mr. Conde had suffered as a child and that the source of this information was Olga Hervis, the defense clinical social worker. (R. 855). Mr. Conde had not told Ms.
Galindo of the abuse himself.
Ms. Jennie Carranza, Mr. Condes sister, testified after Ms. Galindo. She corroborated the fact that Mr. Conde would speak of Chaplain Bizarro often, in fact, her recollection was that Mr. Conde would speak about Chaplain Bizarro each time they met.
861). Jennie Carranza felt that Mr. Condes relationship with the Chaplain had “turned his life around.” (R. 862). Ms. Galindo stated that she met with “Laura,” that the meeting lasted about half an hour, and she did not mention Chaplain Bizarro because she was not asked to do so and was not given any guidelines as to what to mention or topics to go into.
Carranza stated that she met with Mr. Rafael Rodriguez, Mr. Condes mitigation attorney, once, in the courthouse, right before trial. (R. 864).
Nelly Conde (“Nelly') testified next. She is Mr. Condes older sister. She met several times with Mr. Fink and Mr. Rodriguez. (R. 872). She was asked for a list of names of people to interview and she put the list together with the help of Ms. Galindo. (R.
873). Nelly stated that she met with Laura Blankman and Olga Hervis as well, several times with each. (R. 874). Nelly served as the conduct of information between Mr.
defense. (R. 874). Nelly stated that Mr. Conde would mention Chaplain Bizarro during each family visit to the Metro-West facility, during a pre-trial period that lasted years. (R. 876). Nelly met with Olga Hervis and Mr. Conde. During an interview, Mr. Conde admitted to the fact that he had been molested by his uncle, Carlos, while he was a child in Colombia. (R. 878). Afterwards, Mr. Conde told Ms. Hervis that he had disclosed this incident to Chaplain Bizarro. (R. 878). This information was later conveyed to Laura Blankman before trial. (R. 879). Nelly gave the information as to the name of the Chaplain to Ms. Blankman during a meeting had at her house or at a restaurant before trial. (R. 880). Nelly testified that before the incident of the plea offer, friends and family would call to inquire as to the status of the case, but that stopped after the withdrawals of the plea. In fact, Nelly herself stopped gathering names and information for the defense, feeling that there was nothing else to be done. Nelly stated that neither Mr.
Fink nor Mr. Rodriguez ever asked her whether her brother had any spiritual advisory or priest.
The balance of the fact patterns is offered pursuant to the parties' reconstruction of the testimony obtained during the hearing. The original of the transcript could not be obtained. As such, the reconstructed testimony is presented in its entirety.
the evidentiary hearing, September 1, 2006, the State first called Jeffrey H. Fink. Mr. Fink testified that he was lead counsel for the Defendant at trial.
Mr. Fink testified that he first learned of the existence of Chaplain Bizarro after the guilt phase, but probably before the penalty phase. Mr. Fink did not recall who alerted him to the existence of Chaplain Bizarro.
Fink did recall that he subpoenaed correctional officers from the Metro West Pretrial Detention facility on December 7, 1999, in an attempt to present evidence that the Defendant had behaved well during his pretrial incarceration. He had received the names of the officers to subpoena from either the Defendant or Laura Blankman.
Ms. Blankman was a mitigation specialist with Roy Matthews and Associates. She had been employed by counsel to gather records concerning Defendant and assist in formulating a penalty phase defense.
December 8, 1999, which was during the penalty phase of the trial, Chaplain Bizarro appeared in response to the subpoena. Mr. Fink first met with Chaplain Bizarro outside of the courtroom. Chaplain Bizarro told Mr. Fink that the Defendant had revealed, very early on in his relationship with Chaplain Bizarro, that Defendant had been sexually abused as a child.
Fink stated that he had focused his investigation on whether the Defendant had been sexually abused as a young person early in his representation of the Defendant. He did so even though the Defendant initially denied such victimization. The defense attorneys, Ms. Blankman and Dr. Golden had always believed that there had to be something such as childhood sexual abuse that led him to commit these crimes. To further this investigation, Mr. Fink retained Dr. Fred Berlin because of his excellent credentials and his specialization in sex crimes cases. He did not tell Dr. Berlin his defense theory. Instead, he asked Dr.
Berlin look for what was in the Defendant's psyche that may have led him to commit the crimes. Mr. Fink also had Ms. Blankman and psycho therapist/social worker, Olga Hervis, interview the Defendant, together and extensively.
Within a day or two of November 30, 1999, Defendant finally admitted to Ms.
Hervis that he had been abused. Ms. Hervis then informed Ms. Blankman, who in turn informed Mr. Fink. This was the first time that the Defendant or anyone else had provided factual support for a claim that he had been abused.
Prior to this revelation, all of the information the defense had regarding sexual abuse merely showed that it was possible that Defendant may have been abused.
testimony was focused on showing that the Defendant suffered from a condition that led to his situation. However, the Defendant's lack of a history of sexual deviancy prior to the crime was contrary to the norm. Dr. Berlin opined that the Defendant was suffering from severe depression and that the depression may have resulted from sexual abuse in childhood.
the Defendant had admitted to being sexually abused years before trial, Mr. Fink would have provided information about the abuse to Dr. Golden, Dr. Berlin, Ms. Hervis, and others at time of the disclosure.
On cross-examination, Mr. Fink confirmed that he always suspected that Defendant had been sexually molested as a child. He had this suspicion because he did not believe that the Defendant had the character to kill in cold blood.
However, Mr. Fink had difficulty in obtaining evidence of the Defendant's background. Defendant was from the nation of Colombia. The State Department had issued a warning about traveling to Columbia. Moreover, many of Defendant's family members had moved, died, or had otherwise become unavailable. Additionally, one family member was controlling the contact with the other family members and friends, and many of the family members and friends were fearful of the Defendant's abuser, his uncle Carlos de Andres. However, the Defendant's wife's family, particularly Defendant's father-in-law, was very cooperative.
addition, Mr. Fink found that it is difficult to probe psychological issues that people do not want to disclose. People do not disclose their dark secrets to people they do not trust. Moreover, there was a cultural barrier to having the Defendant reveal that he was sexually abused. In an attempt to overcome these obstacles, Mr. Fink retained Ms.
Blankman because she was trained to deal with people, people liked her, and people would open up to her.
Fink acknowledged that it is imperative to speak with a defendant's spiritual advisory in developing mitigation if the attorney becomes aware that the defendant was speaking to a spiritual advisory. Mr. Fink spoke with and wrote the Defendant at least six times a year. He did not recall the Defendant wearing a cross, and was unsure if he ever saw the Defendant carrying a Bible. He was not sure if he asked the Defendant if he was seeking spiritual advice but his notes did not reflect such a question.
least, had some religious training. As a result, Chaplain Bizarro refused to speak to Mr. Fink until the Defendant con sented to him doing so.
Mr. Fink stated that his main contact with the Defendant's family was through Defendant's sister, Nellie. Mr. Fink met with Nellie frequently. Mr. Fink did not recall asking Nellie, Jenny Conde, or Martha Galindez, who was assisting Nellie, about the identity of the Defendant's priest. However, both Mr. Fink and Ms. Blankman did speak to the family at length about the identity of any confident of the Defendant.
The Defendant then attempted to ask Mr. Fink about an incident concerning a plea offer. The State objected that the question was beyond the scope. The trial court sustained the objection.
On redirect examination, Mr. Fink stated that he believed that his secretary probably informed Chaplain Bizarro of why he was being called as a witness. Mr. Fink did recall that Chaplain Bizarro indicated that he needed the Defendant's permission before relating anything that the Defendant had told him (believing it to be privileged). After reviewing Chaplain Bizarro's testimony about his interaction with counsel and the Defendant from page 9020 of the trial transcript, Mr. Fink stated that there was a time period between when he learned of the existence of Chaplain Bizarro and when Chaplain Bizarro agreed to speak to Mr. Fink.
After Mr. Fink's testimony was complete, the State next called J. Rafael Rodriguez, Defendant's other trial counsel. Mr. Rodriguez testified that he and Mr. Fink worked hand in hand on both phases of the trial.
fluent in Spanish, also stated that he received a list of the Defendant's family members in Colombia from the Defendant's sister, Nellie.
During the summer of 1999, Mr. Rodriguez traveled to Baranquilla, Colombia with Laura Blankman, who was not fluent in Spanish, and spent five days interviewing family members. At that time, Colombia was in the midst of a guerilla war. As a result of the fighting, Mr. Rodriguez and Ms. Blankman remained at a hotel in Barranquilla to meet with the family members. The ability to interview the family about sexual abuse was further complicated by the fact that the family members were poor and looked to the Defendant's uncle (the alleged abuser) for financial support. The Defendant's uncle had recently won the Colombian lottery. This lack of finances also prevented the defense from presenting the family members' live testimony at the penalty phase, as did the family members' lack of the visas necessary to travel to the United States.
Rodriguez and Ms. Blankman in Colombia, Olga Hervis, a family systems analyst, was retained. Ms. Hervis received family information for Colombia and made additional calls to the family there. Ms. Hervis was assisted by Ms. Zapata, a psychologist and the sister-in-law of Carlos Andres. Mr.
Rodriguez believed that someone had spoken to all the relevant family members in an attempt to get background information about the Defendant.
Mr. Rodriguez claimed to have first learned of the existence of Chaplain Bizarro during the actual conduct of the trial of the penalty phase. A few weeks before the penalty phase began, Mr. Fink sent Ms. Blankman to the jail to interview witnesses who could provide information relevant to the Defendant's lack of future dangerous ness while incarcerated. Ms. Blankman had reported that she had run into Chaplain Bizarro during this visit and that Chaplain Bizarro had stated that he had very good information about the Defendant. Chaplain Bizarro told Ms. Blankman that he had spoken to the Defendant approximately six months after the Defendant's arrest and that the Defendant had admitted to Chaplain Bizarro that he had been the victim of sexual abuse.
The Defendant had also admitted sexual abuse to Ms. Hervis, however, this admission only occurred immediately before the penalty phase. Ms. Hervis had previously had several sessions with the Defendant before he broke down and admitted that his Uncle Carlos had sexually abused him.
On cross-examination, Mr. Rodriguez testified that he became the second chair attorney near the end of 1995. He stated that Defendant had been arrested in June of that year. As a second chair attorney, Mr. Rodriguez split responsibility for both phases of the trial with Mr. Fink.
Defendant never admitted that he had been sexually abused as a child to either Mr.
Rodriguez or Mr. Fink. However, Mr. Rodriguez had suspected that the Defendant had been sexually abused as a child. This suspicion arose as a result of Mr. Rodriguez’s interviews in Colombia. During those interviews, a neighbor had informed Mr. Rodriguez that he thought his son had been abused by Alfredo, who shares a room with the Defendant.
As a result, the attorneys suspected that Defendant may have been abused as well.
Rodriguez stated that he had been an attorney for 26 years. During that time, Mr. Rodriguez had represented many Hispanic defendants. He was aware that Hispanic defendants were reluctant to admit sexual abuse as there is a cultural taboo about dis closing abuse.
The experts also suspected that there was something undisclosed in Defendant's background because the Defendant's actions were not normal. Sexual abuse was a potential area of undisclosed trauma. This was especially true because this was a sexually motivated crime. As a result, Mr. Rodriguez was of the opinion that sexual abuse would have been a powerful mitigator in this case. As such, Mr. Rodriguez and the defense team had interviewed as many family members and friends as possible about sexual abuse as they could.
Mr. Rodriguez did not recall specifically asking either the Defendant or his sister Nellie about the identity of the Defendant's priest. The Defendant had never indicated that his religious life was significant, and Mr. Rodriguez had not perceived the Defendant as a particularly spiritual person. Further, Mr. Rodriguez had instructed the Defendant not to speak to anyone in the jail. However, Mr.
Rodriguez acknowledged that it was possible that the Defendant might have unburdened himself to a priest.
Instead, he preferred to sit down with people and take his own notes. He did not have any notes indicating that he asked anyone about the identity of a priest or spiritual advisory, however, he had questioned people about religion generally. The responses he received indicated that the Defendant did not have a church-going background. As such, Mr. Rodriguez did not get into the issue of a priest or spiritual advisory.
After presenting Mr. Rodriguez’s testimony, the State rested, and the Defendant indicated he had no rebuttal. Defendant then presented his closing argument. In the argument, Defendant asserted that Mr. Fink had testified that the experts told counsel that they suspected that the Defendant had been sexually abused as a child because there was no evidence of sexual defiance in the Defendant's background and something must have triggered the Defendant's behavior. Because the guilt phase evidence was overwhelming, counsel should have focused their efforts in developing mitigation. Knowing that Dr.
Berlin believed that the Defendant had to have been abused as a child and that the family in Colombia did not provide the information, counsel should have sought to locate someone else in whom the Defendant would have confided. As such, to be effective, the attorneys should have asked about the identity of the Defendant's priest or spiritual advisory. By failing to do so counsel were ineffective.
In its closing argument, the State responded that the evidentiary hearing had been limited to the issue on which the trial court had granted a hearing after the Huff hearing. It argued that most of the testimony, which it summarized, was not directed to those issues. It asserted that Nellie’s testimony was not credible. The State pointed to the inconsistencies between Nellie’s testimony about the disclosure of sexual abuse before trial on direct and cross and Ms. Hervis’s testimony. It asserted that the attorneys had no indication that would have caused them to know what the Defendant told to a priest or advisory, who refused to disclose Defendant's confidence until after the Defendant made a waiver during trial. Instead, counsel did conduct a reasonable investigation into the Defendant's background by going to Colombia and interviewing family members and friends. The fact that the investigation was hampered by a guerilla war and the economic condition of the family did not make the investigation unreasonable.
SUMMARY OF THE ARGUMENTS
I. The trial court erred when it denied claim III insofar trial counsel's failure to preserve the record on appeal and object to closing arguments that amount to a ridiculing of the defense's theory of the case and allegations that the defense was trying to mislead and confuse the Jury, and that trial counsel was creating and fabricating evidence.
Strickland presumption applicable to post-conviction relief, the trial court abused its discretion when it denied the use of the defense expert, Manuel Alvarez, insofar trial counsel's failure to discover mitigating evidence.
III. The trial court erred in denying Appellant's claim IV where the testimony obtained during the evidentiary hearing clearly shows that trial counsels knew or should have know of the existence of both the abuse and chaplain Bizarro well in advance of the middle of the sentencing date.
IV. The trial Court erred in denying Mr. Conde Fifth Claim in his post-conviction pleading where his Sixth, Eighth, And Fourteenth Amendments to the United States Constitution were violated due to the fall out effect of the withdrawn plea as it affected his ability to collect and present mitigating information during his sentencing phase, resulting in a death sentence that is unreliable.
V. The trial court erred in denying claim VI of Appellant's post conviction pleading as the Florida capital sentencing procedures are unconstitutional as employed in Appellant's case in violation of his Sixth Amendment rights
ARGUMENTS
I. THE TRIAL COURT ERRED WHEN IT DENIED CLAIM III
INSOFAR THE TRIAL COUNSEL'S FAILURE TO PRESERVE THE
RECORD ON APPEAL AND OBJECT TO IMPROPER
PROSECUTORIAL COMMENTS DURING CLOSING ARGUMENTS
During the State's closing argument, the State made multiple improper comments that were not objected to by trial counsel. These comments amounted to \. The comments Appellant objected to in his motion appear next, and went wholly unobjected. Moreover, these comments were not mentioned in direct appeal.
initial instruction read to the jury] It didn't say render a true verdict according to some theory or some plan or something the lawyers “come up with.” R, 7767.
trying to distract you from the true issues in the case. R 7769 * And yet everything that you have heard today in argument from the defense attorney had nothing to do with these issues. R 7816 * There is a phrase as it deals with attorneys and I don't know, I don't mean to diminish my profession, but the phrase is only painter and lawyers can change white to black. R 7820 (Important to note Mr.
that time referred to himself as the prosecutor, not a lawyer)… but to cover it up with another layer of paint… blame everybody else except the defendant. R 7821.
The question, then, is whether the prosecutors comments were so prejudicial as to vitiate the entire trial. In Street v. State, 636 So.2d 1297 (Fla.1994) this Court set the standard for determining whether prosecutorial misconduct in closing argument, absent an objection, is such fundamental error as to warrant a new trial:
party's failure to object to improper prosecutorial comments will preclude appellate review, unless the comments are so prejudicial as to constitute fundamental error. See Street v. State, 636 So.2d 1297 (Fla.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743, 130 DCA 1989) Absent a contemporaneous objection, an Appellant is required to demonstrate that the prosecutors comments constituted fundamental error. See Crump v. State, 622 So.2d 963, 972 (Fla.1993) (holding that since prosecutorial comments did not constitute fundamental error, absence of preservation of issue by defense counsel precluded appellate review).
Fundamental error in closing occurs when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impair ing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v.
Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993), *548 quoting Tyus
587 (Fla.1961) Thus, to be considered fundamental error, prosecutorial miscomment during closing arguments must be "such as to utterly destroy the defendant's most important right under our system, the right to the 'essential fairness of [his] criminal trial.' " Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998) (citations omitted);
see also Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989), cert. denied, 513 U.S.
case is error that "reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting from State v. Delva, 575 So.2d 643, 644-45 (Fla.1991), cert. denied, 522 In the instant case, the prosecutor disparaged defense counsel and the theory of the defense. See, e.g., Lewis v. State, 780 So.2d 125, 130 (Fla. 3rd DCA 2001) and Alvarez v.
State, 547 So.2d 1119 (Fla. 3rd DCA 1991). The comment about a theory the lawyers “come up with” is a direct and impermissible attack. Yet it went unobjected and not preserved. These particular comments were not specifically included in Mr. Condes direct appeal. This Court has noted that “[a]ny error in prosecutorial comments is harmless if there is no reasonable probability that those comments affected the verdict.” Hitchcock v.
State, 755 So.2d 638, 643 (Fla.2000) (citing King v. State, 623 So.2d 486, 487 (Fla.1993)).
In the case at bar, however, the comments attacked the very seed of the defense, whether Mr. Conde was guilty of premeditated murder.
In the case at bar, these arguments required the granting of a new trial. See Ruiz;
Caraballo v. State, 762 So.2d 542 (Fla. 5th DCA 2000)
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED THE USE OF THE DEFENSE EXPERT, MANUEL
ALVAREZ, INSOFAR TRIAL COUNSEL'S FAILURE TO DISCOVER
MITIGATING EVIDENCE
The Defendant contends that the trial court erred in denying him the ability to present expert testimony regarding the reasonable ness of the failure by trial counsel to discover witness Chaplain Bizarro in a timely fashion so as to present him for mitigation.
a result, the jury that recommended – although not unanimously – the death penalty, did so without having received crucial information regarding extensive sexual abuse received by Mr. Conde. The jury simply was not told of the true facts behind the Defendant's background. If such facts as are now known had been presented during the Defendant's penalty phase proceeding, the jury would have heard of the potential “reason why” and Mr. Conde would have received a life sentence. Thus, the question as to the reasonable ness of the trial attorneys conduct is the critical issue in the case at bar.
This Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied under Strickland. First, the claim ant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is under mined.
Dufour v. State, 905 So.2d 42,51 (Fla. 2005). Thus, the Strickland test presents a mixed question of law and fact.
A defendant presenting such claims toils against a “strong presumption that trial counsel's performance was not ineffective.” See Strickland v. Washington, 466 U.S. 668, 690 (1984). “A fair assessment of attorney performance requires that every effort be made to eliminate the distort ing effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”
The issue before the lower court was to reach a determination as to whether trial counsel had conducted a reasonable investigation into mitigation. Strickland, 466 U.S. at 691, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel's conduct should be judged by a reasonable ness standard under prevailing professional norms. For example, the U.S. Supreme Court has consistently cited ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases for capital defense counsel.
First, the claim ant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is under mined. Dufour v. State, 905 So.2d 42,51 (Fla.
(2005) Because both prong of the Strickland test present mixed questions of law and fact, this Court employ a mixed standard of review, defer ring to the circuit court's factual findings that are supported by competent, substantial evidence but reviewing the circuit court's legal conclusions de nov. See Sochor v. State, 883 So2d 766, 771-72 (Fla. (2004).
the bases of ineffective assistance of counsel faces a steep uphill climb; there is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distort ing effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”
the case at bar, Manuel Alvarez would have testified as to the prevailing professional norms of a defense attorney charged with defend ing a person facing the death penalty. This is not a situation such as where this Court has stated that “[c]counsel cannot be deemed ineffective merely because current counsel dis agrees with trial counsel's strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhione v. State, 768 So.2d 1037, 1048 (Fla. 2000). The issue before the court is two fold: what is the “prevailing professional norm,” and did the conduct at issue fall short of such norm. It is also well held law that pursuant to F.R.Ev. Section 90.703, testimony in the form of an opinion or inference is not objection able because it goes to the ultimate issue to be decided by the trier of fact. The judge of Jury has the right and power to accept or reject such testimony.
Although a trial court's decision on evidence admissibility is subject to the abuse of discretion standard of review, that discretion is limited by the rules of evidence.” Michael (Fla.1997)). Section 90.703, Florida Statutes (2003), permit opinion testimony on an ultimate issue of fact: “Testimony in the form of an opinion or inference otherwise admissible is not objection able because it includes an ultimate issue to be decided by the trier of fact.” In the case at bar, Mr. Alvarez would testify as to the reasonable professional standard or norm, and the normal pit falls that a competent attorney needs to watch out for. This information was both material and relevant to the decision at hand.
To deny the entry of such opinion testimony is leaves Mr. Conde with scant little basis from which to work. Specifically and critically, Mr. Alvarez would have testified, if allowed, that the failure to discover Chaplain Bizarro was not reasonable.
III. THE TRIAL COURT ERRED IN DENYING APPELLANTS
CLAIM IV WHERE THE TESTIMONY OBTAINED DURING THE
EVIDENTIARY HEARING CLEARLY SHOWS THAT TRIAL
COUNSELS KNEW OR SHOULD HAVE KNOW OF THE
EXISTENCE OF BOTH THE ABUSE AND CHAPLAIN BIZARRO
WELL IN ADVANCE OF THE MIDDLE OF THE SENTENCING
DATE The testimony of witness Galindo clearly sets out both the issue of childhood abuse and the existence of Chaplain Bizarro, as well as the fact that he had become a critical person in Rory Condes life. As testified to by Ms. Galindo, and unrebutted by the State's witnesses, Ms. Galindo was never interviewed by mitigation counsel, although her presence and existence was known to them. This testimony is buttressed by the testimony of Jennifer Carranza, Mr. Condes younger sister, who only met with Mr. Rodriguez once, and who, during her interview with the social worker, did not speak about Chaplain Bizarro due to the fact that no one gave her parameters as to who to speak about.
The unrebutted testimony of Nelly Conde, Appellant's older sister, is more dramatic.
Nelly Conde testified to the fact that Mr. Conde would mention Chaplain Bizarro during each family visit to the Metro-West facility that took place during a pre-trial period that lasted years. (R. 876). Nelly met with Olga Hervis and Mr. Conde together, and during one of those interviews Mr. Conde admitted to the molestation at the hands of the uncle in Colombia. (R. 878). Worse yet, Mr. Conde told Ms. Hervis that he had disclosed this incident to Chaplain Bizarro. (R. 878). This critical information was passed on to Laura Blankman well before trial, together with the name of Chaplain Bizarro. (R. 879). Nelly gave the information as to the name of the Chaplain to Ms. Blankman during a meeting had at her house or at a restaurant before trial. (R. 880).
This evidence is contrary to the information provided to the court by trial counsel.
They did not “just found out about it,” rather there had been a failure of representation at the critical point of the case – that of mitigation. This is not a case where the client was not telling the attorney's about the incident. The item had been told, it was just processed along the line and presented at the critical point: the jury.
well held law that beyond the guilt-innocence stage, defense counsel must discharge very significant constitutional responsibilities at the sentencing phase of a capital trial. The United States Supreme Court has held that in a capital case "accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die [made] by a jury of people who may have never made a sentencing decision." Gregg v. Georgia, 428 U.S. 153, 190 (1976) (plurality opinion). In Gregg and its companion cases, the Court emphasized the importance of focusing the sentencer's attention on "the particularized characteristics of the individual defendant." Id. at 206. See also Roberts v. Louisiana, 428 Meeting the requirements of individualizing a defendant requires a thorough investigation into the defendant's background. Recently, the U.S. Supreme Court re-emphasized the importance of conducting an investigation into a defendant's personal history for mitigation purposes. In Wiggins v. Smith, 123 S.Ct. 2527 (2002), the Court examined the investigation done by a public defenders office in a capital murder case; as it was determined that defense counsel failed to follow up on evidence of their clients troubled past, their representation was deemed ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
When faced with claims of this nature, this Court has stated that the (“[T]he obligation to investigate and prepare for the penalty portion of a capital case cannot be over stated-this is an integral part of a capital case.”); Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001). And thus, “The failure to do so ‘may render counsel's assistance ineffective.' ” Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.1994). The issue in that case, in light of Wiggins, is whether the investigation conducted by counsel and the subsequent failure to present a critical component of evidence was itself reasonable “from counsel's perspective at the time the decision was made.” Holland v. State, 916 So.2d 750, 757 (Fla.
2005). (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471
(2003)).
To make this determination of reasonable less, the Wiggins court turned to the American Bar Association (ABA) Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. See id. At 2536-7. Under these guidelines, trial counsel in a capital case "should comprised efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. Id. at 2537. Furthermore, when examining trial counsel's investigation, a reviewing court “must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis added). Thus, under Wiggins, the issue is whether Counsel's decision not to interview Chaplain Bizarro prior to the sentencing phase, his failure to uncover Bizarro's importance to the case, and his failure to timely present his testimony before the jury, was reasonable, or whether the information readily available to Condes mitigation and trial counsel should have left a reasonable attorney to investigate further? In the case at bar, the “further investigation” required was to merely speak to a readily available witness.
The answer to this question in Mr. Condes capital penalty phase is a resounding no;
available mitigation never reached the jury, who plays such a key sentencing role in Counsel's failure to explore, develop, and present readily available mitigating material was unreasonable and deprived Mr. Conde of his constitutional right to effective assistance of counsel and a reliable sentencing proceeding.
The mitigating evidence that counsel failed to properly discover and present is powerful. Condes complaint to Chaplain Bizarro at the time it was made erased the State's complaint that it was “created” by the attorneys after the fact. This available mitigating evidence, taken as a whole, "might well have influenced the jury's
moral culpability, and have provided an insight into Mr. Conde human condition and served to humanize him before the eyes of the jury, so as to explain his criminal
IV. MR. CONDE 'S SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE
VIOLATED DUE TO THE FALLOUT EFFECT OF THE
WITHDRAWN PLEA AS IT AFFECTED HIS ABILITY TO COLLECT
AND PRESENT MITIGATING INFORMATION DURING HIS
SENTENCING PHASE. AS A RESULT, THE DEATH SENTENCE IS
UNRELIABLE.
or about August 15, 1997, during a meeting with Judge Margolius and Jeffrey Fink, Esq., prosecutor Laeser, the assigned assistant state attorney, made a plea offer of life imprisonment. The plea was conditional upon the acceptance by the trial court, after determining that the victim's families were in agreement or had no objection.
At a later time, the assigned assistant state attorney had a change of heart.
Additionally, the families who did appear for a hearing, became adamant that Mr. Conde receive the death penalty.(R 3,426). Subsequent to the event, the fact that Mr. Conde had been wiling to plea to a life sentence was made public in the media. After this fact became known, and during the mitigation phase as well as the investigation and preparation of Mr.
defense case in mitigation, Mr. Condes attorneys encountered greater difficulty in contacting witnesses. Friends and coworkers of Mr. Conde, critical witnesses for mitigation, no longer wanted to be involved, and in fact the Defense lost touch with several that had been up to then involved.
Accordingly, Mr. Conde was denied a fair, reliable capital sentencing determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding Florida law. Trial counsel's failure to present the prejudice suffered by the defense due to the withdrawals or denial of the plea was deficient, thereby prejudicing Mr. Conde.
The fall out from the aborted plea was made clear through the testimony of Martha Galindo. Ms. Galindo, a friend of the Conde family was a frequent social visitor of Mr.
Conde while he was detained at Metro-West. During these visits, Mr. Conde would speak about Chaplain Bizarro at almost every social visit. Ms. Galindo, however, testified that she never met with Mr. Rafael Rodriguez nor with Mr. Jeffrey Fink, Appellant's mitigation and lead attorneys respectively, and that after the aborted plea offer took place, Ms.
Galindo testified that “nobody wanted to know about the case.” (R. 853). Prior to this she was assisting the family in locating witnesses. She herself stopped trying to locate or find witnesses, and “completely disconnected from the system.” (R. 853). Ms. Galindo also stopped attempting to meet with Mr. Condes attorneys. (R. 854).
It is clear, thus, from the testimony, that the fact of the matter is that the aborted plea offer had a negative effect on Mr. Condes case. Counsel never brought the case back before the court to effectively convey the fall out and seek enforcement of the plea.
V. THE TRIAL COURT ERRED IN DENYING CLAIM VI OF
APPELLANT'S POST CONVICTION PLEADING AS THE FLORIDA
CAPITAL SENTENCING PROCEDURES ARE
UNCONSTITUTIONAL AS EMPLOYED IN MR. CONDES CASE IN
VIOLATION OF HIS SIXTH AMENDMENT RIGHTS
landmark decision of in United States v. Booker, 543 U.S. 220 (2005), the U.S. Supreme Court held that the Sixth Amendment right to a jury trial is violated when a district court imposes a sentence under the Federal Sentencing Guidelines greater than the maximum permitted by facts admitted by the defendant or found by a jury beyond Supreme Court held that in capital sentencing scheme where aggravating factors “operate as ‘the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury.” Id. at 609, 122 S.Ct. 2428 (quoting Apprendi v. New has applied the rule of Apprendi to facts subjecting a defendant to the death penalty. Ring
602, 609 (2002). Under the Florida capital sentencing scheme, to obtain a death sentence, the state must prove beyond a reasonable doubt at least one aggravating factor. However, the defendant need not prove any mitigating factors at all to obtain a life sentence. See
murder, a majority of the jury must find that the State has proven, beyond a reasonable doubt, the existence of at least one aggravating factor as listed in the capital sentencing statute. See Florida Statutes § 921.141(2)(a). It must also find that any aggravating circumstances outweigh any mitigating circumstances, also listed in the statute, that may exist. See Florida Statutes § 921.(2)(b). However, and this is one the most particularly problematic features of the Florida’s hybrid Capital Sentencing scheme: a jury may recommend a sentence of death so long as a majority concludes that at least one aggravating factor exists, but there need not be any agreement as to which factor exists.
is the sentencing Judge who must independently determine the existence of aggravating and mitigating factors, and the weight to be given each. F.S.A. § In the case at bar, the jury did not return a unanimous recommendation. As a matter of fact, we do not know if some of the jurors found any aggravating circumstances since the jury recommended a sentence of death by a vote of nine
to three (3). (R. 1649). The trial court then found CCP and HAC on its own. It concluded that the victim's murder was “cold,” (R9-1730) following the State's theory Mr.
fit of rage.” The “calculated” appears to have been based on the similar crimes evidence, and the finding of premeditation appears to have been based on the modus operandi. (R91731). The sentencing judge likewise found HAC.
The fact of the matter is that these elements were not presented and found by the jury selected to try this case, and thus violates Ring and Apprendi. Moreover, the fact that the jury may enter a recommendation without expressing which factors it found, nor whether it agrees on the factors, is a further violation of Ring and Apprendi.
Appellant is aware of the holding of Bevel v. State, 983 So.2d 505 (Fla.2008) and Carter
the Ring argument; as well as this Court's opinion of Merck v. State, 975 So.2d 1054, 1067 (Fla. 2007), Frances v. State, 970 So.2d 806, 822 (Fla. 2007), and Hunter v. State --- So.2d ----, 2008 WL 4352655 (Fla., 2008)_
CONCLUSIONS AND RELIEF SOUGHT
Based upon the foregoing and the record, Mr. Rory Conde respectfully urges this Court to reverse the lower court order, and grant such other relief as the Court deems just and proper.
Respectfully Submitted Gustavo J. García-Montes, Esq. 2333 Brickell Ave. Suite A-1 Miami, Florida 33129 Tel: (305) 666-2880 Fax: (786) 662-3011 FBN: 986320
CERTIFICATE OF SERVICE
HEREBY CERTIFY that a true copy of the foregoing memorandum of law has been furnished by United States Mail, first class post age pre paid, to all parties appearing below on this Monday, October 20, 2008.
Copies furnished to: Sandra Jaggard, Esq.
Assistant Attorney General Hon. J. Bagley Office of the Attorney General Lawson E. Thomas Courthouse Criminal Division Center 444 Brickell Ave.
N.W. 1st Avenue Suite 950 Miami, Florida 33128 Miami, FL 33131 Abraham Laeser Mr. Rory Enrique Conde Assistant State Attorney, 11 DC # M25274 Judicial Circuit Union Correctional Inst., P1-117 S 1350 NW 12 Ave 7819 N.W. 228 Street Miami, FL 33136 Raiford, FL 32026-4450 305-547-0314 Respectfully Submitted Gustavo J. García-Montes, Esq.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Appellant's Initial Brief, complies with Rule 9.100(1) and Rules 9.210(a)(2), Florida Rules of Appellate Procedure, and that this Brief has been submitted in Times New Roman 14-point front and with Administrative Order No. AOSC04-84.
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-1998
Appellant, vs.
THE STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY,
CRIMINAL DIVISION
BRIEF OF APPELLEE
Attorney General Tallahassee, Florida
Assistant Attorney General Florida Bar No. 0012068
LISA A. DAVIS
Assistant Attorney General Florida Bar No. 672904 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131
PH. (305) 377-5441
FAX (305) 377-5655
I. THE LOWER COURT PROPERLY DENIED THE CLAIM THAT
COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
II. THE LOWER COURT DID NOT ABUSE ITS DISCRETION IN
EXCLUDING THE TESTIMONY OF AN EXPERT ON
III. THE TRIAL COURT PROPERLY DENIED THE CLAIM
REGARDING INVESTIGATION AND PRESENTATION OF
IV. THE CLAIM REGARDING THE ALLEGED PLEA OFFER WAS
V. THE LOWER COURT PROPERLY DENIED DEFENDANT'S RING Anderson v. State, Apprendi v. New Jersey, Bevel v. State, Breedlove v. Singletary, Bryant v. State, Burger v. Kemp, Casey v. State, Chandler v. State, Clemmons v. State, Commonwealth v. Peterkin, Conde v. Florida, Conde v. State, Darden v. Wainwright, Davis v. State, Demps v. State, Ferrell v. State, Franqui v. State, Freeman v. State, Freund v. Butterworth, Garcia v. State, Goins v. State, Griffin v. State, Groover v. Singletary, Hann v. Balogh, Harvey v. Dugger, Hildwin v. Dugger, Johnson v. State, Jones v. State, Jones v. State, iii Jones v. State, Kimbrough v. State, Kokal v. Dugger, Lugo v. State, Lynch v. State, Lytle v. Jordan, Mabry v. Johnson, Maharaj v. State, McCarver v. Lee, Medina v. State, Meeks v. State, Miller v. State, Owen v. State, Pace v. State, Parker v. State, Pooler v. State, Preston v. State, Provenzano v. Singletary, Ragsdale v. State, Rimmer v. State, Ring v. Arizona, Robinson v. State, Robinson v. State, Rodriguez v. State, Rogers v. State, Rollman v. State, Smith v. State, Smith v. State, State v. Moore, State v. Ohler, State v. Riechmann, Stephens v. State, Strickland v. Washington, Turner v. Dugger, Valle v. State, Weatherford v. Bursey, White v. State, Wiggins v. Smith, Williams v. State, Winokur v. State,
STATEMENT OF CASE AND FACTS
July 12, 1995, Defendant was charged by indictment with the first degree murder of Lazaro Comesana, the first degree murder of Elisa Martinez, the first degree murder of Chairty Nava, the first degree murder of Wanda Crawford, the first degree murder of Necole Schneider and the first degree murder of Rhonda Dunn. (R. 1-4)1 Prior to trial, Defendant moved to sever the counts, which was granted. (R. 65-66, 5) The trial on the charge of the first degree murder of Rhonda Dunn commenced on September 13, 1999.2 (R. 1070) After considering the evidence, the jury found Defendant guilty of the first degree murder of Rhonda Dunn. (R. 1218) The trial court adjudicated Defendant in accordance with the verdict. (R. 1723- 24) Following a penalty phase, the jury recommended that Defendant be sentenced to death for the murder of Ms. Dunn by a vote of 9 to 3. (R. 1649) The trial court followed the jury's recommendation and sentenced Defendant to death for the murder of Ms. Dunn. (R.
will refer to the record on appeal, corrected transcripts of proceedings and supplemental record on appeal from Defendant's direct appeal, FSC Case No.
SC00-789.
On April 3, 2001, Defendant entered a guilty plea regarding the remaining courts. (PCR. 37) He was sentenced to life imprisonment without the possibility of parole on each count and all of Defendant's sentences were ordered to be served consecutively. (PCR. 37) 1725-51) In support of the death sentence, the trial court found three aggravators: prior violent felonies based on Defendant's prior conviction for armed burglary, armed robbery, armed kidnapping and armed sexual battery; heinous, atrocious or cruel (HAC); and cold, calculated and premeditated (CCP). (R.
1728-32) In mitigation, the trial court found one statutory mitigator: lack of significant criminal history – mode rate weight. (R. 1732-33) It found five non statutory mitigators:
Defendant's family background in that his mother died when he was young and that he was a good and loving family member – mode rate weight; Defendant's employment history – mode rate weight; Defendant's mental state – little weight; Petitioner's alleged good conduct and adjustment to pretrial detention – little weight; and Defendant's relationship with his children – move rate weight. (R. 1740-41, 1744-45, 1747-48) It considered and rejected the claims that Defendant was under the influence of extreme mental or emotional disturbance at the time of the crime, that the victim was a participant in Defendant's conduct, that Defendant acted under extreme dress at the time of the crime and that Defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired at the time of the crime as mitigation. (R. 1733-40) It further considered and rejected as mitigation Defendant's age, allegations that Defendant was raised in an abusive and neglectful environment without support, allegations that Defendant was abused as a child, assertions that Defendant was religious, Defendant's alleged remorse, Defendant's alleged potential for rehabilitation, Defendant's attempts to plead guilty in exchange for a life sentence, the fact the jury's recommendation was not unanimous and the fact that the Catholic Church and Colombian Government opposed the death penalty. (R.
1740, 1741-44, 1746-49)
Defendant appealed his conviction and sentence to this Court, raising 13 issues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S CAUSE
CHALLENGES TO DEATH-PRONE JURORS FOR WHOM THERE WAS
MANIFEST REASONABLE DOUBT ABOUT THEIR IMPARTIALITY.
II.
THE TRIAL COURT ERRED IN STRIKING VENIRE PERSON
AGUIRREGAVIRIA FOR CAUSE WHERE SHE SPECIFICALLY STATED
SHE COULD VOTE FOR THE DEATH PENALTY UNDER APPROPRIATE
CIRCUMSTANCES.
III.
THE CIRCUMSTANTIAL EVIDENCE WAS LEGALLY INSUFFICIENT
TO SUPPORT [DEFENDANT'S] PREMEDITATED MURDER
CONVICTION.
IV.
THE TRIAL COURT REVERSIBLY ERRED BY ADMITTING
VOLUMINOUS EVIDENCE OF FIVE UNCHARGED HOMICIDES
IMPERMISSIBLY RENDERING THIS EVIDENCE A FEATURE OF THE
CASE AND DENYING THE DEFENDANT A FAIR TRIAL.
THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING
IRRELEVANT AND UNFAIRLY PREJUDICIAL EVIDENCE OF (A)
DEFENDANT'S] AGGRAVATED BATTERY/FALSE IMPRISONMENT OF A WOMAN SIX MONTHS FOLLOWING THE CHARGED HOMICIDE; (B) A POLICE OFFICER’S WARNING TO DUNN THIRTY-SIX HOURS BEFORE HER DEATH REGARDING “THE TAMIAMI STRANGLER' AND
(C) [DEFENDANT'S] CONCEALMENT AT THE TIME OF HIS ARREST.
VI.
THE CUMULATIVE EFFECT OF IMPROPER PROSECUTORIAL
COMMENTS DURING GUILT PHASE OPENING STATEMENT AND
CLOSING ARGUMENT DENIED [DEFENDANT] A FAIR TRIAL VII.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
[DEFENDANT'S] CONFESSION WHERE (1) COERCIVE INTERROGATION RENDERED HIS CONFESSION INVOLUNTARY; (2)
HIS WAIVERS OF HIS RIGHTS TO SILENCE AND COUNSEL WERE
NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY RENDERED;
(3) POLICE FAILED TO HONOR HIS RIGHT TO A PROMPT
INITIAL APPEARANCE; (4) HIS INTERROGATION VIOLATED THE
VIENNA CONVENTION.
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH THE
IX.
THE TRIAL COURT ERRONEOUSLY REJECTED STATUTORY AND
THE DEFENDANT WAS DENIED A FAIR SENTENCING HEARING AS
A RESULT OF THE TRIAL COURT'S ERRONEOUS ADMISSION OF COLLATERAL CRIMES EVIDENCE AND THE PROSECUTOR'S
RELATED IMPROPER ARGUMENTS.
THE TRIAL COURT ERRED IN EXCLUDING CRUCIAL DEFENSE
EVIDENCE OF [DEFENDANT] BEING SEXUALLY ABUSED AS A
CHILD IN VIOLATION OF HIS RIGHT TO PRESENT MITIGATION.
IMPOSITION OF THE DEATH PENALTY AGAINST [DEFENDANT] IS
CONSTITUTIONALLY DISPROPORTIONATE.
FLORIDA’S DEATH PENALTY STATUTE VIOLATES THE UNITED
STATES AND FLORIDA CONSTITUTIONS BECAUSE IT (1) DOES
NOT REQUIRE NOTICE OF AGGRAVATING CIRCUMSTANCES OR (2)
REQUIRE SPECIFIC JURY FINDINGS REGARDING THE
SENTENCING FACTORS; (3) PERMITS A NON-UNANIMOUS RECOMMENDATION OF DEATH; (4) IMPROPERLY SHIFTS THE BURDEN OF PROOF AND PERSUASION TO THE DEFENSE; AND (5) FAILS ADEQUATELY TO GUIDE THE JURY'S DISCRETION.
Initial Brief of Appellant, FSC Case No. SC00-789.
On September 4, 2003, this Court affirmed Defendant's conviction and sentence. Conde v. State, 860 So. 2d 930 (Fla.
(2003). This Court held that the trial court properly denied five of Defendant's cause challenges and that the error in the denial of a sixth was not reversible because Defendant was awarded two additional peremptory challenges at the time of trial. Id. at 938-42. It determined that the State's cause challenge had been properly granted and that the evidence was sufficient to sustain Defendant's conviction. Id. at 942-43.
It determined that the evidence of other crimes and the warnings to Ms. Dunn was properly admitted. Id. at 943-50. It found the admission of evidence of Defendant's attempt to conceal himself at the time of his arrest was harmless error. Id. at 950. It determined that the issue regarding the comments in closing was largely unpreserved and entirely without merit. Id. at 950. It found the motion to suppress had been properly denied. Id. at Regarding the penalty phase, this Court held that HAC and CCP were both properly found. Id. at 953-55. It found that the mitigation had been properly rejected. Id. at 955-57. It found that the collateral crimes evidence was properly admitted and that the trial court properly excluded Chaplain Bizarro's testimony at the penalty phase. Id. at 957-58. It found Defendant's death sentence proportion ate. Id. at 958-59. It determined that the Florida’s capital sentencing scheme is constitutional.
In its opinion, this Court found the facts presented at trial were:
On January 13, 1995, [Defendant] picked up Rhonda Dunn, a prostitute, and took her to his apartment.
After twice engaging in sexual relations, Dunn lay on the bed with [Defendant] for approximately five minutes and then got up to enter the bathroom.
Defendant] followed her from behind and began to manually strangle her. A struggle ensued, in which Dunn suffered numerous defensive wounds and fell to the floor with [Defendant] on top, continuing to strangle her. Dunn eventually died from asphyxiation.
[Defendant] then disposed of her body by driving it to another location and leaving it on the side of the road.
This sequence of events had occurred on five prior dates. On each occasion, [Defendant] picked up a prostitute, they engaged in sexual relations at his apartment, and [Defendant] then strangled the victim to death, later deposit ing the body along the side of a road. [FN1] This series of murders occurred over the course of six months and was preceded by the break-up of [Defendant's] marriage, which occurred when his wife discovered that [Defendant] was using the services of prostitutes. [Defendant] later confessed to all six murders and stated that after each murder, he knelt over the deceased body and verbally blamed the victim for his marital problems.
Defendant] was arrested in June of 1995, after fire rescue personnel discovered a woman, naked and bound in duct tape, trapped in his apartment. During the investigation of that crime, evidence was discovered in [Defendant's] apartment that linked him to the series of murders. Upon his arrest, [Defendant] was read his Miranda rights, con sented to searched of his apartment and automobile, and con sented to the taking of saliva and blood samples. He was interrogated over the course of the afternoon and evening of his arrest date but did not admit to the crimes. The next day, he was allowed to telephone his family, after which he confessed to each murder. He was charged by a six-count indictment with the firstdegree murder of all six victims. The counts were severed, and his first trial, held in October 1999, was for Dunn’s murder. The trial court permitted the State to introduce Williams [FN2] rule evidence of the other five murders. On the basis of DNA, fiber, tire, and shoe evidence, together with medical testimony and [Defendant's] confession, the jury found [Defendant] guilty of first-degree murder.
[FN1] The names of the victims and the dates of their deaths were: Lazaro Comesana, September 16, 1994;
Elisa Martinez, October 8, 1994; Charity Nava, November 20, 1994; Wanda Crawford, November 25, 1994;
Necole Schneider, December 17, 1994; and Rhonda Dunn, January 13, 1995. Each died of asphyxiation.
[FN2] Williams v. State, 110 So. 2d 654 (Fla. 1959).
937. Defendant sought certiorari review in the United States Supreme Court, which was denied on April 5, 2004. Conde On November 12, 2003, the Office of the Attorney General sent its notice of affirmance to the Office of the State Attorney and the Department of Corrections (DOC). (PCR. 40-43)3 On November 26, 2003, the State Attorney sent its notice of affirmance to the Miami-Dade County Police Department and the Office of the Medical Examiner. (PCR. 45-48) On January 27, 2004, DOC sent its notice of compliance and its notice that it had delivered exempt materials. (PCR. 54-57) On February 10, 2004, the Miami-Dade Police Department moved the lower court for an extension of time in which to produce its public records.
60-61) On February 25, 2004, the lower court granted the extension until August 27, 2004. (PCR. 62) On May 19, 2004, the Miami-Dade Police Department sent its notice of compliance.
On September 23, 2004, Defendant made a request for additional public records to the Miami-Dade Police Department.
(PCR. 65-67) He sought information regarding the qualifications and derogatory, non-administrative information from the personnel files of 24 officers and any documents regarding internal affairs investigations of these officers. Id. The Miami-Dade Police Department noticed its compliance with this request on February 18, 2005. (PCR-SR. 13-18) The symbol “PCR.” and “PCR-SR.” will refer to the record on appeal and supplemental record on appeal in this matter.
On March 23, 2005, Defendant filed his motion for post conviction relief, raising 7 claims:
[DEFENDANT] HAS BEEN DENIED HIS RIGHTS TO DUE PROCESS
AND EQUAL PROTECTION AS GUARANTEED BY THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND THE
CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION,
BECAUSE ACESS TO THE FILE AND RECORDS PERTAINING TO
[DEFENDANT'S] CASE IN THE POSSESSION OF CERTAIN STATE
AGENCIES HAVE BEEN WITHHELD IN VIOLATION OF FLA. R.
CRIM. P. 3.852.
II.
THE APPLICATION OF THE NEW RULE 3.851 TO [DEFENDANT]
VOLATES HIS RIGHTS TO DUE PROCESS OF LAW AND EQUAL
PROTECTION.
III.
[DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AT THE GUILT PHASE, IN VIOLATION OF THE SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. TRIAL COUNSEL FAILED TO OBJECT TO
PORTIONS OF THE STATE'S CLOSING ARGUMENT WHEREIN SUCH
ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT WHICH
OCCURRED EXCLUSIVELY DURING THE PROSECUTOR'S CLOSING
ARGUMENT TO THE JURY. AS A RESULT, THE DEATH SENTENCE
IS UNRELIABLE.
IV.
[DEFENDANT] WAS DENIED AN ADEQUATE ADVERSARIAL TESTING
AT THE SENTENCING PHASE OF HIS TRIAL, IN VIOLATION OF
THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION. TRIAL COUNSEL FAILED TO
ADEQUATELY INVESTIGATE AND PREPARE MITIGATING EVIDENCE
AND TO ADEQUATELY CHALLENGE THE STATE'S CASE. AS A
RESULT, THE DEATH SENTENCE IS UNRELIABLE.
[DEFENDANT'S] SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION WERE VIOLATED DUE TO
THE FALLOUT EFFECT OF THE WITHDRAWN PLEA AS IT
AFFECTED HIS ABILITY TO COLLECT AND PRESENT MITIGATING
INFORMATION DURING HIS SENTENCING PHASE. AS A RESULT,
THE DEATH SENTENCE IS UNRELIABLE.
VI.
THE FLORIDA CAPITAL SENTENCING PROCEDURES AS EMPLOYED
IN [DEFENDANT'S] CASE VIOLATED HIS SIXTH AMENDMENT
RIGHT TO HAVE UNANIMOUS JURY RETURN A VERDICT
ADDRESSING HIS GUILT OF ALL THE ELEMENTS NECESSARY FOR
THE CRIME OF CAPITAL FIRST DEGREE MURDER.
VII.
[DEFENDANT] IS DENIED HIS RIGHTS UNDER THE EIGHTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND UNDER THE CORRESPONDING PROVISIONS OF
THE FLORIDA CONSTITUTION BECAUSE EXECUTION BY
ELECTROCUTION AND/OR LETHAL INJECTION IS CRUEL AND
UNUSUAL PUNISHMENT.
68-95) Claim III was predicated on counsel's failure to object to comments in closing argument. (PCR. 74-77) Claim IV was based on the failure to have discovered Chaplain Bizarro earlier and on the failure to take step to present the testimony of family members from Colombia. (PCR. 77-82) Claim VII was based on a report from an anti-death penalty organization.
The lower court held a Huff hearing on October 12, 2005.
the beginning of the hearing, Defendant acknowledged that he had received all of the public records and withdrew Claim I. (PCR. 799) Defendant stood on his pleading regarding Claim II. (PCR. 800-01) The lower listened to argument regarding why an evidentiary hearing should be held on Claim III and reserved ruling. (PCR. 801-08) After listening to argument on Claim IV, it granted an evidentiary hearing regarding the failure to present the family members and the failure to provide Chaplain Bizarro's statement to the mental health experts but denied a hearing on why Chaplain Bizarro was not discovered earlier. (PCR. 808-11) It denied Claim V as procedurally barred and insufficiently plead. (PCR. 811-13) It also summarily denied Claim VI and VII. (PCR. 813-17) At the end of the hearing, the lower court decided that it would hear evidence on Claim III at the evidentiary hearing. (PCR. 817) It tentatively scheduled the evidentiary hearing for February
17, 2006. (PCR. 818-22)
February 7, 2006, the State moved the lower court to require Defendant to provide a witness list and reports of experts and to make his witnesses available for deposition.
(PCR. 724-26) The State made its request because Defendant had recently indicated that he needed a continuance of the evidentiary hearing because his experts were still working on the case. Id. The lower court granted the State's motion, rest the evidentiary hearing for July 25, 2006, and set a discovery cut off date of May 16, 2006. (PCR. 733) On June 19, 2006, Defendant served a witness list that listed three witnesses who were titled “Non Expert Witnesses.” (PCR. 731-32) Regarding one of the witnesses (Marlene Vargas), Defendant listed an address in Colombia, indicated that she did not have a via and requested that the State schedule a video deposition. Id. Regarding the other two witnesses, Defendant indicated he had no present addresses. Id.
The State then filed a motion to compel compliance with the lower court's discovery order. (PCR. 733-36) It argued that the list was deficient because no expert witnesses were listed on the list despite the fact that the matter had been continued so that expert witnesses would be available. Id. It further noted that the request that the State schedule a video deposition of Ms. Vargas was improper, as it did not appear that Ms. Vargas would be testifying at the evidentiary hearing and there had been no request to perpetuated her testimony. Id.
On July 5, 2006, Defendant moved to perpetuated the testimony of Ms. Vargas. (PCR. 737-38) He claimed that she was an essential witness to the claim considering the alleged plea offer (Claim V) and to the existence of Chaplain Bizarro. Id.
The lower court granted the motion to perpetuated but the perpetuation never occurred because Ms. Vargas could not be located. (PCR. 869) On July 6, 2006, Defendant filed an updated witness list, providing addresses for the two other previously listed witnesses and adding another non expert witness. (PCR. 741-42) On August 21, 2005, the State moved to exclude the testimony of Manuel Alvarez. (PCR. 746-49) In the motion, the State asserted that Defendant had provided Mr. Alvarez’s name as an expert witness he intended to call at the evidentiary hearing. Id. The State noted that Mr. Alvarez was an attorney who was being called as an expert on attorney performance, which was not the proper subject of expert testimony. Id. On August 22, 2006, Defendant served a written response to this motion, acknowledging that Mr. Alvarez was being called as an expert in attorney performance and arguing that such testimony was properly admissible. (PCR-SR. 10-12)
The evidentiary hearing finally commenced on August 31, 2006. (PCR. 824-26) At the beginning of the hearing, the lower court heard argument on the motion to exclude Mr. Alvarez.
827-36) After doing so, it granted the State's motion and excluded the testimony of Mr. Alvarez. (PCR. 836) Defendant then called Martha Galindo, a friend of Defendant and his family from when Defendant was in school in this country. (PCR. 845-46) Ms. Galindo testified that she heard of Defendant's arrest from the news and went to see Defendant's family. (PCR. 847) When the matter was pending pretrial, she visited Defendant almost every weekend in jail. (PCR. 847-48) During these visits, Defendant told Ms. Galindo that he was meeting with a pastor before he saw her on Saturdays. (PCR.
848) Ms. Galindo believed that the pastor was important to Defendant because he seemed calmer after speaking to the pastor.
848) Ms. Galindo stated that she encouraged Defendant to speak to the pastor. (PCR. 850) Ms. Galindo stated that she spoke pretrial to Laura Blankman, Defendant's investigator, and told her about the pastor. (PCR. 849, 854) She did not meet with the attorneys.
Ms. Galindo stated that Defendant's family was happy when they heard about the possibility of a plea agreement. (PCR.
851) She stated that when she heard that a plea would not be possible, she became disillusioned and lost interest in the case. (PCR. 851-52) She claimed that she abandoned her attempts to assist his family in locating people who knew Defendant. (PCR. 852-53) She claimed that other friends, particularly Defendant's best friend William, also lost interest in the case and lost contact with Defendant. (PCR. 853) On cross, Ms. Galindo stated that she knew Defendant had been abused as a child because Olga Hervis told her. (PCR. 855) Ms. Galindo admitted that Defendant never told her he was abused. (PCR. 855) Ms. Galindo claimed that she lost interest in the case because she could not do anything. (PCR. 857) She admitted that William could not be located at the time of trial because he had moved, which was unrelated to the plea. (PCR. 857-58) Jennie Carrazana, Defendant's sister, testified that she visited Defendant as often as she could when he was detained pretrial. (PCR. 860-61) During these visits, Defendant frequently mentioned that he was visited by a priest. (PCR.
Ms. Carrazana believed that the priest was important to Defendant because he mentioned visiting with him. (PCR. 861) She believed that Defendant had a good relationship with the priest and was turning his life around. (PCR. 861-62) Ms. Carrazana met with Rafael Rodriguez, one of Defendant's trial counsel, for a few minutes before trial in the courthouse.
not tell him about the priest because counsel did not ask. (PCR. 862) She also met with Ms.
Blankman for half an hour pretrial but did not tell her about the priest either for the same reason. (PCR. 863, 865) On cross, Ms. Carrazana stated that she knew that Ms.
information for Defendant's attorneys. (PCR. 866) She recalled that the subject of their discussion was Defendant's background. (PCR. 866-67) Nelly Conde, another of Defendant's sisters, testified that she was in Colombia when Defendant was arrested and returned to this country after she heard of the arrest. (PCR. 871-72) Ms.
Conde met with Defendant's attorneys a number of times before trial. (PCR. 872) Jeffrey Fink, Defendant's other trial attorney, asked her to provide him with the names of Defendant's family and friends both in Colombia and this country. (PCR.
872-73) Ms. Conde averred that she enlisted the assistance of Ms. Galindo in this effort. (PCR. 873) Ms. Conde acknowledged that she also met with Laura Blankman, Defendant's investigator, who questioned her about family members and friends. (PCR. 874) She further stated that she was interviewed by Olga Hervis and knew that Ms. Hervis also interviewed Defendant, their father and Ms. Galindo. (PCR. 874) Ms. Conde stated that she had visited Defendant every Saturday during his detention. (PCR. 875) During these visits, Defendant told Ms. Conde that he met with a chaplain named Dan Bizarro every Saturday before he saw her. (PCR. 875-76) Ms.
Conde believed that Defendant had developed a relationship with Chaplain Bizarro and that Chaplain Bizarro was important to Defendant. (PCR. 876) Ms. Conde claimed that she, other family members and Defendant were all interviewed together pretrial by Ms. Hervis.
(PCR. 876-78) During this interview, Ms. Hervis asked Defendant about being sexually abused as a child. (PCR. 877) Ms. Hervis attempted to get Defendant to name the person who allegedly abused him. (PCR. 877) Ms. Conde claimed that when Ms. Hervis asked about their uncle Carlos, Defendant started to cry and refused to speak anymore. (PCR. 877) Ms. Conde also claimed to have been present before trial when Ms. Hervis was told that Defendant had discussed the allegations of sexual abuse with Chaplain Bizarro. (PCR. 878-79) She also claimed to have been informed that Ms. Hervis told Ms. Blankman about Chaplain Bizarro and his knowledge of alleged sexual abuse. (PCR. 879- 80) Ms. Conde averred that she then gave Ms. Blankman the name of the chaplain. (PCR. 880) Ms. Conde stated that her brother told her that he had been offered a plea to life imprisonment. (PCR. 880) Ms. Conde claimed that Defendant was willing to accept the offer. (PCR.
880-81) She claimed that after the plea was no longer possible, she lost faith in the system. (PCR. 881) She averred that other family members and friends quit asking about the court proceedings, although they continued to provide support. (PCR.
881) She further asserted that she quit trying to get names for the defense. (PCR. 882) On cross, Ms. Conde stated that she had not told Ms. Hervis before trial that Defendant had discussed allegations of sexual abuse with Chaplain Bizarro. (PCR. 884) Instead, she claimed that she had simply given Ms. Hervis Chaplain Bizarro's name as someone with whom Defendant talked. (PCR. 884) Ms. Conde then claimed that Defendant had told Ms. Hervis that he discussed allegations of sexual abuse with Chaplain Bizarro before trial.
(PCR. 884-85) Ms. Conde claimed that Defendant told her about this disclosure after it occurred but before trial. (PCR. 886- 87) Ms. Conde asserted that she did not testify about any knowledge of any sexual abuse allegations at trial because she was not asked. (PCR. 887) Ms. Conde insisted that Defendant's friend William moved away and did not testify at trial. (PCR. 888-89) When confronted with the fact that the record contained Williams testimony, Ms. Conde stated that she could not explain the discrepancy except to state that she was not present for the entire trial. (PCR. 889) She claimed not to have realized that numerous penalty phase witnesses had been presented at trial.
Ms. Conde admitted that the attorneys questioned her extensively about the hardships in Defendant's childhood. (PCR.
890-91) However, she continued to insist that she never discussed the sexual abuse allegations with the attorneys because she was not directly asked about them. (PCR. 891) After Defendant rested, the State called Jeffrey Fink, Defendant's lead trial counsel. (PCR-SR. 6) Mr. Fink testified that he first learned of the existence of Chaplain Bizarro after the guilt phase but probably before the penalty phase. (PCR-SR.
Fink did recall that he subpoenaed correctional officers from the Metro West Pretrial Detention facility on December 7, 1999, in an attempt to present evidence that Defendant had behaved well during his pretrial incarceration.
names of the officers to subpoena from either Defendant or Laura Blankman. (PCR-SR. 6) Ms. Blankman was a mitigation specialist with Roy Matthews and Associates. (PCR-SR. 6) She had been employed by counsel to gather records concerning Defendant and assist in formulating a penalty phase defense. (PCR-SR. 6) On December 8, 1999, which was during the penalty phase of the trial, Chaplain Bizarro appeared in response to the subpoena. (PCR-SR. 6) Mr. Fink first met with Chaplain Bizarro outside of the courtroom. (PCR-SR. 6) Through this meeting, Mr.
Fink learned that Defendant had disclosed that he had been abused as a child. (PCR-SR. 6) Chaplain Bizarro told Mr. Fink that Defendant had revealed, very early on in his relationship with Chaplain Bizarro, that Defendant had been sexually abused as a child. (PCR-SR. 6) Mr. Fink stated that he had focused his investigation on whether Defendant had been sexually abused as a young person early in his representation of Defendant. (PCR-SR. 6) He did so even though Defendant initially denied such victimization. (PCR- SR. 6) The defense attorneys, Ms. Blankman and Dr. Golden had always believed that there had to be something such as childhood sexual abuse that led him to commit these crimes. (PCR-SR. 6) To further this investigation, Mr. Fink retained Dr. Fred Berlin because of his excellent credentials and his specialization in sex crimes cases. (PCR-SR. 6) He did not tell Dr. Berlin his defense theory. (PCR-SR. 6) Instead, he asked Dr. Berlin look for what was in Defendant's psyche that may have lead him to commit the crimes. (PCR-SR. 6) Mr. Fink also had Ms. Blankman and psycho therapist/social worker, Olga Hervis, interview Defendant, together and extensively. (PCR-SR. 6) Within a day or two of November 30, 1999, Defendant finally admitted to Ms. Hervis that he had been abused.
Hervis then informed Ms. Blankman, who in turn informed Mr.
Fink. (PCR-SR. 6) This was the first time that Defendant or anyone else had provided factual support for a claim that he had been abused. (PCR-SR. 6) Prior to this revelation, all of the information the defense had regarding sexual abuse merely showed that it was possible that Defendant may have been abused. (PCR- SR. 6) Dr. Berlin’s testimony was focused on showing that Defendant suffered from a condition that led to his situation.
(PCR-SR. 6) However, Defendant's lack of a history of sexual deviancy prior to the crime was contrary to the norm. (PCR-SR.
(6) Dr. Berlin opined that Defendant was suffering from severe depression and that the depression may have resulted from sexual abuse in childhood. (PCR-SR. (6) If Defendant had admitted to being sexually abused years before trial, Mr. Fink would have provided information about the abuse to Dr. Golden, Dr. Berlin, Ms. Hervis, and others at the time of the disclosure. (PCR-SR. (6) On cross examination, Mr. Fink confirmed that he always suspected that Defendant had been sexually molested as a child.
this suspicion because he did not believe that Defendant had the character to kill in cold blood. (PCR- SR. 7) However, Mr. Fink had difficulty in obtaining evidence of Defendant's background. (PCR-SR. 7) Defendant was from Colombia.
7) The State Department had issued a warning about traveling to Columbia. (PCR-SR. 7) Moreover, many of Defendant's family members had moved, died, or had otherwise become unavailable. (PCR-SR. 7) Additionally, one family member was controlling the contact with the other family members and friends, and many of the family members and friends were fearful of Defendant's alleged abuser, his Uncle Carlos de Andres. (PCR- SR. 7) However, Defendant's wife's family, particularly Defendant's father-in-law, was very cooperative. (PCR-SR. 7) In addition, Mr. Fink found that it is difficult to probe psychological issues that people do not want to disclose. (PCR- SR. 7) People do not disclose their dark secrets to people they do not trust. (PCR-SR. 7) Moreover, there was a cultural barrier to having Defendant reveal that he was sexually abused. (PCR-SR.
attempt to overcome these obstacles, Mr. Fink retained Ms. Blankman because she was trained to deal with people, people liked her, and people would open up to her. (PCR-SR. 7) Mr. Fink acknowledged that it is imperative to speak with a defendant's spiritual advisory in developing mitigation if the attorney becomes aware that the defendant was speaking to a spiritual advisory. (PCR-SR. 7) Mr. Fink spoke with, and wrote, Defendant at least six times a year. (PCR-SR. 7) He did not recall Defendant wearing a cross, and was unsure if he ever saw Defendant carrying a Bible. (PCR-SR. 7) He was not sure if he asked Defendant if he was seeking spiritual advice, but his notes did not reflect such a question. (PCR-SR. 7) Chaplain Bizarro was not a lay person. (PCR-SR. 7) He was ordained or, at least, had some religious training. (PCR-SR. 7) As a result, Chaplain Bizarro refused to speak to Mr. Fink until Defendant con sented to him doing so. (PCR-SR. 7) Mr. Fink stated that his main contact with Defendant's family was through Defendant's sister, Nellie.
Fink met with Nellie frequently. (PCR-SR. 7) Mr. Fink did not recall asking Nellie, Jenny Conde, or Martha Galindo, who was assisting Nellie, about the identity of Defendant's priest.
confident of Defendant. (PCR-SR. 7) Defendant then attempted to ask Mr. Fink about an incident concerning a plea offer. (PCR-SR. 7) The State objected that the question was beyond the scope. (PCR-SR. 7) The trial court sustained the objection. (PCR-SR. 7) On redirect examination, Mr. Fink stated that he believed that his secretary probably informed Chaplain Bizarro of why he was being called as a witness. (PCR-SR. 7) Mr. Fink did recall that Chaplain Bizarro indicated that he needed Defendant's permission before relating anything that Defendant had told him because he believed it to be privileged. (PCR-SR. 7) After reviewing Chaplain Bizarro's testimony about his interaction with counsel and Defendant from page 9020 of the trial transcript, Mr. Fink stated that there was a time period between when he learned of the existence of Chaplain Bizarro and when Chaplain Bizarro agreed to speak to Mr. Fink. (PCR-SR. 7) After Mr. Fink's testimony was complete, the State next called J. Rafael Rodriguez, Defendant's other trial counsel.
Rodriguez testified that he and Mr. Fink worked hand in hand on both phases of the trial. (PCR-SR. 7) Mr. Rodriguez, who is fluent in Spanish, also stated that he received a list of Defendant's family members in Colombia from Defendant's sister, Nellie. (PCR-SR. 8) During the summer of 1999, Mr. Rodriguez traveled to Baranquilla, Colombia with Laura Blankman, who was not fluent in Spanish, and spent five days interviewing family members. (PCR-SR. 8) At that time, Colombia was in the midst of a guerilla war. (PCR-SR. 8) As a result of the fighting, Mr. Rodriguez and Ms. Blankman remained at a hotel in Baraquilla to meet with the family members. (PCR- SR. 8) The ability to interview the family about sexual abuse was further complicated by the fact that the family members were poor and looked to Defendant's uncle, the alleged abuser, for financial support. (PCR-SR. 8) Defendant's uncle had recently won the Colombia lottery. (PCR-SR. 8) This lack of finances also prevented the defense from presenting the family members' live testimony at the penalty phase, as did the family members' lack of the visas necessary to travel to the United States. (PCR-SR.
Rodriguez and Ms. Blankman in Colombia, Olga Hervis, a family systems analyst, was retained. (PCR-SR. 8) Ms. Hervis received family information for Colombia and made additional calls to the family there. (PCR-SR. 8) Ms. Hervis was assisted by Ms. Zapata, a psychologist and the sister-in-law of Carlos de Andres. (PCR-SR.
8) Mr. Rodriguez believed that someone had spoken to all the relevant family members in an attempt to get background information about Defendant. (PCR-SR. 8) Mr. Rodriguez first learned of the existence of Chaplain Bizarro during the actual conduct of the trial of the penalty phase. (PCR-SR. 8) A few weeks before the penalty phase began, Mr. Fink sent Ms. Blankman to the jail to interview witnesses who could provide information relevant to Defendant's lack of future dangerous ness while incarcerated.
Blankman had reported that she had run into Chaplain Bizarro during this visit and that Chaplain Bizarro had stated that he had very good information about Defendant. (PCR-SR. 8) Chaplain Bizarro told Ms. Blankman that he had spoken to Defendant approximately six months after Defendant's arrest and that Defendant had admitted to Chaplain Bizarro that he had been the victim of sexual abuse. (PCR-SR. 8) Defendant had also admitted sexual abuse to Ms. Hervis.
(PCR-SR. 8) However, this admission only occurred immediately before the penalty phase. (PCR-SR. 8) Ms. Hervis had previously had several sessions with Defendant before he broke down and admitted that his Uncle Carlos had sexually abused him. (PCR-SR.
On cross examination, Mr. Rodriguez testified that he became the second chair attorney near the end of 1995. (PCR-SR.
8) He stated that Defendant had been arrested in June of that year. (PCR-SR. 8) As a second chair attorney, Mr. Rodriguez split responsibility for both phases of the trial with Mr. Fink.
Defendant never admitted that he had been sexually abused as a child to either Mr. Rodriguez or Mr. Fink. (PCR-SR. 8) However, Mr. Rodriguez had suspected that Defendant had been sexually abused as a child. (PCR-SR. 8) This suspicion arose as a result of Mr. Rodriguez’s interviews in Colombia. (PCR-SR. 8) During those interviews, a neighbor had informed Mr. Rodriguez that he thought his son had been abused by Alfredo, who shared a room with Defendant. (PCR-SR. 8) As a result, the attorneys suspected that Defendant may have been abused as well. (PCR-SR.
Rodriguez stated that he had been an attorney for 26 years. (PCR-SR. 8) During that time, Mr. Rodriguez had represented many Hispanic defendants. (PCR-SR. 8) He was aware that Hispanic defendants were reluctant to admit sexual abuse, as there was a cultural taboo about dis closing abuse. (PCR-SR.
The experts also suspected that there was something undisclosed in Defendant's background because Defendant's actions were not normal. (PCR-SR. 9) Sexual abuse was a potential area of undisclosed trauma. (PCR-SR. 9) This was especially true because these were sexually motivated crimes.
(PCR-SR. 9) As a result, Mr. Rodriguez was of the opinion that sexual abuse would have been a powerful mitigator in this case.
the defense team had interviewed as many family members and friends as possible about sexual abuse. (PCR-SR. 9) Mr. Rodriguez did not recall specifically asking either Defendant or his sister Nellie about the identity of Defendant's priest. (PCR-SR. 9) Defendant had never indicated that his religious life was significant, and Mr. Rodriguez had not perceived Defendant as a particularly spiritual person. (PCR-SR.
jail. (PCR-SR. 9) However, Mr. Rodriguez acknowledged that it was possible that Defendant might have unburdened himself to a priest. (PCR-SR. 9) Mr. Rodriguez was not keen
Instead, he preferred to sit down with people and take his own notes. (PCR-SR. 9) He did not have any notes indicating that he asked anyone about the identity of a priest or spiritual advisory. (PCR-SR. 9) However, he had questioned people about religion generally. (PCR-SR. 9) The responses he received indicated that Defendant did not have a church-going background. (PCR-SR. 9) As such, Mr. Rodriguez did not get into the issue of a priest or spiritual advisory. (PCR-SR. 9) After presenting Mr. Rodriguez’s testimony, the State rested, and Defendant indicated he had no rebuttal. (PCR-SR. 9) Defendant then presented his closing argument. (PCR-SR. 9) In the argument, Defendant asserted that Mr. Fink testified that the experts told counsel that they suspected that Defendant had been sexually abused as a child because there was no evidence of sexual defiance in Defendant's background and something must have triggered Defendant's behavior. (PCR-SR. 9) Because the guilt phase evidence was overwhelming, counsel should have focused their efforts in developing mitigation. (PCR-SR. 9) Knowing that Dr. Berlin believed that Defendant had to have been abused as a child and that the family in Colombia did not provide the information, counsel should have sought to locate someone else in whom Defendant would have confided. (PCR-SR. 9) As such, to be effective, the attorneys should have asked about the identity of Defendant's priest or spiritual advisory. (PCR- SR. 9) By failing to do so, counsel were ineffective. (PCR-SR.
In its closing argument, the State responded that the evidentiary hearing had been limited to the issue on which the lower court had granted a hearing after the Huff hearing. (PCR- SR. 9) It argued that most of the testimony, which it summarized, was not directed to those issues. (PCR-SR. 9) It asserted that Nellie’s testimony was not credible. (PCR-SR. 9) The State pointed to the inconsistencies between Nellie’s testimony about the disclosure of sexual abuse before trial on direct and cross and Ms. Hervis’s testimony. (PCR-SR. 9) It asserted that the attorneys had no indication that would have caused them to have known what Defendant told to a priest or advisory, who refused to disclose Defendant's confidence until after Defendant made a waiver during trial. (PCR-SR. 9) Instead, counsel did conduct a reasonable investigation into Defendant's background by going to Colombia and interviewing family members and friends. (PCR-SR. 9) The fact that the investigation was hampered by a guerilla war and the economic condition of the family did not make the investigation unreasonable. (PCR-SR. 9) On September 22, 2006, the lower court entered its written order denying Defendant's motion for post conviction relief.
(PCR. 778-89) It found that the public records claim was insufficiently plead and had been withdrawn at the Huff hearing.
found that Defendant had not presented any evidence in support of Claim III and that this Court's ruling on direct appeal showed there was no prejudice. (PCR.
It determined that Defendant had failed to prove that counsel was ineffective during the penalty phase. (PCR. 782-85) It found that the claim about the alleged plea offer was insufficiently plead, the evidence presented at the evidentiary hearing did not prove the claim and the record refused the claim. (PCR. 785-86) It determined that the Ring claim was procedurally barred and merit less, and that the execution claim was without merit as a matter of law. (PCR. 786-88) This appeal follows.
SUMMARY OF THE ARGUMENT
The lower court properly denied the claim that counsel was ineffective for failing to object to comments in closing. The claim is procedurally barred and merit less and Defendant failed to prove the claim after being given an evidentiary hearing on it.
The trial court did not abuse its discretion in excluding the testimony of Manual Alvarez. The proffered subject of the testimony would have concerned an issue of law and would not have aided the trier of fact.
The lower court properly denied the claim of ineffective assistance of counsel at the penalty phase after an evidentiary hearing. The lower court's findings of fact are support by competent, substantial evidence and it properly applied the law to those facts.
The lower court properly denied the claim regarding the plea offer. The claim is procedurally barred, insufficiently plead, refused by the record, unproven, and without merit as a matter of law. The Ring claim was properly denied as procedurally barred and merit less.
ARGUMENT
I. THE LOWER COURT PROPERLY DENIED THE CLAIM THAT COUNSEL
WAS INEFFECTIVE FOR FAILING TO OBJECT TO COMMENTS
DURING THE STATE'S CLOSING ARGUMENT.
Defendant first asserts that the lower court erred in denying his claim that his counsel was ineffective for failing to object to comments in closing. Defendant claims that the prosecutors comments disparaged defense counsel and the defense theory. Defendant argues only a portion of the claim made below, based on those comments that were not specifically raised on direct appeal. Therefore, to the extent Defendant has not briefed his arguments regarding other comments in closing, he has waived review of the trial court's ruling. See Anderson v.
State, 822 So. 2d 1261, 1268 (Fla. 2002).
Here, the lower court denied this claim after an evidentiary hearing, stating:
Defendant alleges counsel was ineffective by failing to object to numerous comments made by the prosecutor during closing arguments. At the evidentiary hearing, counsel for Defendant stated that he was standing on his motion on this issue.
The Florida Supreme Court reviewed the arguments for fundamental error and concluded that no fundamental error occurred. Conde, 860 So. 2d at 950. As such, Defendant cannot show prejudice pursuant to Strickland, supra.
This claim is denied.
This claim was properly summarily denied as it is procedurally barred. This Court has repeatedly held that where a claim was raised and decided on direct appeal, it cannot be re-litigated in a post conviction proceeding again under the guise of ineffective assistance of counsel. Lugo v. State, 33 Fla. L. Weekly S824, S829-30 (Fla. Oct. 8, 2008); Preston v.
State, 926 So. 2d 1243 (Fla. 2006); Freeman v. State, 761 So. 2d 1055, 1067 (Fla.
(2000). In fact, in Robinson v. State, 707 So. 2d 688, 697-99 (Fla. (1998), this Court directly held that claims regarding the propriety of comments in closing and the effective assistance of counsel for failing to object to comments in closing to be procedurally barred “[a]s a matter of law.” Moreover, this Court has held that relying on different grounds or arguments regarding an issue that was raised and rejected as a claim of ineffective assistance of counsel does not lift the bar. Medina
v. State, 573 So. 2d 293, 295 (Fla. 1991); see also Harvey v.
Dugger, 656 So. 2d 1253, 1256 (Fla. 1995); Turner v. Dugger, 614 Here, Defendant raised the issue of the propriety of comments in closing on direct appeal. (Initial Brief, SC00-789, at 57) While Defendant pointed to other comments,4 he alleged the same impropriety regarding the comments, that the comments were improper attacks on the defense, specifically that the defense was trying to lead the jury down a different road. This Court rejected the argument, specifically finding:
[Defendant] argues error in the... prosecutors alleged personal attacks on defense counsel....
find that the essential premise of the prosecutors argument, that the defense's focus on certain issues was designed to lead the jury down the wrong road, was not improper. See Rimmer v. State, 825 So.2d 304, 324 n. 16 (Fla.), cert. denied, 537 U.S.
the propriety of the prosecutors comments that Defendant was leading the jury down the wrong road was raised and rejected on direct appeal based on the “essential premise” of the prosecutors whole argument, the lower court properly determined that Defendant's present claim is barred and that raising the claim in the guise of ineffective assistance of counsel relying on different comments did not lift the bar. (PCR. 782) It should be affirmed.
Moreover, to the extent Defendant argues this claim as if it were an appeal from a summary denial, this is not true. At the Huff hearing, the lower court granted an evidentiary hearing. (PCR. 817) The lower court then proceeded with the The comments raised on direct appeal dealt with references to two cross examinations and comments regarding the DNA evidence.
(Initial Brief, SC00-789 at 57) evidentiary hearing it had ordered. (PCR. 826) However, during his opening statement, Defendant indicated that he was standing on his motion. (PCR. 842-43) The lower court denied this claim partially based on this refusal and the resultant failure by Defendant to carry his burden of proof. (PCR. 782) The order denying the motion explains that Defendant refused to present evidence and chose to stand on his pleadings at the evidentiary hearing. (PCR. 782) Under these circumstances, it cannot be said that the claim was summarily denied. See Owen v. State, 773 So.
2d 510, 513-14 (Fla. 2000).
Furthermore, denying this claim because Defendant refused to proceed with an ordered evidentiary hearing is entirely proper. This Court has held that defendants bear the burden of proof at post conviction hearing and that they must present evidence beyond mere speculation to carry that burden. Maharaj
323, 325 (Fla. 1983). In Owen, this Court held that a defendant who refuses to proceed and present evidence at an ordered evidentiary hearing waives the claims for relief upon which an evidentiary hearing was ordered. 773 So. 2d at 513-14;
see also Ferrell v. State, 918 So. 2d 163, 173-74 (Fla. 2005).
Here, the lower court granted Defendant an evidentiary hearing on Claim III. Defendant declined to present evidence at the evidentiary hearing and chose to stand on his pleading. (PCR> 842-43) As such, he did not carry his burden of proof and waived this claim. The denial of the claim should be affirmed.
Additionally, the claim was properly denied because the claim is merit less. Counsel is not deficient where the comments made were not objection able. Jones v. State, 949 So. 2d 1021, 1031-32 (Fla. 2006). Furthermore, comments that do not constitute reversible error cannot establish the prejudice necessary to demonstrate an ineffective assistance of counsel claim. Lugo, 33 Fla. L. Weekly at S829.
The first comment came after the prosecutors repetition of the defense's request that the jury “do the right thing” by rendering a true verdict and fully stated: “At the beginning of this case you took an oath. You may not remember the words in it, but it was to render a true verdict according to the law and the evidence. It didn't say render a true verdict according to some theory or some plan or something the lawyers come up with, just the law that the Judge is going to tell you at the end of the case and the evidence.” (T. 7766-67) Thereafter, the prosecutor explained that the evidence was the testimony and exhibits admitted during the case. (T. 7767) This is a completely proper explanation that the jury's duty is to follow the law provided by the judge and apply it to the evidence presented to them during the trial. See Smith v. State, 699 So.
2d 629, 235-36 (Fla. 1997) (competent juror standard is to follow law and apply it to the facts).
The second comment was also an appropriate argument to the jury that it should focus on the evidence presented and issues to be decided in the case. After explaining that the State's purpose was to drive reasonable doubt from the jurors' minds, the prosecutor commented that the jurors should deliberate as to whether something was said by the lawyers or was said by the witness and whether it was said to help them make a decision or to “distract [them] from the true issues in this case.” (T. 7769) This argument was proper response to the cross examinations conducted and the arguments previously made by Defendant wherein Defendant attempted to impeach the State's witnesses and argue about the mistakes made by the police, medical examiners and forensics, and arguments that the evidence was not credible. See Pace v. State, 854 So. 2d 167, 179 (Fla.
(2003); Garcia v. State, 644 So. 2d 59, 62-63 (Fla. (1994).
The third comment regarded how the issue being decided in the case was who killed Rhonda Dunn, and not the quality of the witnesses or whether the police did a good or lousy job investigating the case, wherein the prosecutor argued that nothing Defendant presented had anything to do with who killed Rhonda Dunn. (T. 7816) This was appropriate reply to Defendant's arguments as stated previously. Pace, 854 So. 2d at 179; Garcia, 644 So. 2d at 62-63. Likewise, it was appropriate commentary regarding the attempts to steer the jury away from the real issue it had to decide. Conde,
Finally, the comment regarding an attorney's ability to change white to black was appropriate analogy regarding Defendant's attempts to get the jury to not examine the real issues in the case. (T. 7820-21) The prosecutor was asking the jury to focus on the issues and determination it was going to be making; not Defendant's attempts to distract them from the real issues. Rimmer v. State, 825 So. 2d 304, 324 n.16 (Fla.
(2002); White v. State, 377 So. 2d 1149, 1150 (Fla. 1979) (“[i]t is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue”).
Accordingly, the comments were completely appropriate argument regarding Defendant's attempts to steer the jury down the wrong path and the jury's true duty in deciding the case, as this Court previously acknowledged. Conde, 860 So. 2d at 950 n.12. As such, the lower court properly determined that counsel was not ineffective for failing to make nonmeritorious objections that the comments were improper. Kokal v. Dugger, 718 So. 2d 138 (Fla. 1998)(counsel not ineffective for failing to raise merit less issue); Groover v. Singletary, 656 So. 2d 424 (Fla. 1995); Hildwin v. Dugger, 654 So. 2d 107 (Fla.), cert.
8, 11 (Fla. 1992). This Court should affirm.
II. THE LOWER COURT DID NOT ABUSE ITS DISCRETION IN
EXCLUDING THE TESTIMONY OF AN EXPERT ON INEFFECTIVE
ASSITANCE OF COUNSEL.
Defendant next asserts that the lower court abused its discretion in excluding the proposed testimony of Manuel Alvarez. The trial court did not abuse its discretion5 because Mr. Alvarez’s testimony invaded the province of the court and would not have added the finder of fact.
an expert is only appropriate when a trial court determines that the subject is beyond the common understanding of the fact-finder and that the testimony will aid the fact- Jones v. State, 748 So. 2d 1012 (Fla. 1999). “The question of whether a strategy or tactic is reasonable on a post conviction relief proceeding is decided by the trial court as an issue of law.” Casey v. State, 969 So. 2d 1055, 1058 (Fla. 4th DCA 2007); see also Strickland v. Washington, 466 U.S. 668, 690 (1984). Therefore, where a defendant seeks to proffer an expert opinion regarding whether trial counsel rendered ineffective assistance - the trial court properly prevents such testimony.
2d at 1058. The testimony would not assist the trial court in any way as the inquiry “is a question of law to A trial court's decision regarding the admissibility of evidence is reviewed for an abuse of discretion. Ray v. State, 755 So. 2d 604, 610 (Fla. 2000); Zack v. State, 753 So. 2d 9, 25 (Fla. 2000).
be decided by the... court” and is not one determined by the live testimony of an expert. Id. (quoting Provenzano v.
Singletary, 148 F.3d 1327, 1331-32 (11th Cir. (1998)); see also Strickland, 466 U.S. at 690.
In Casey, the Fourth District Court of Appeals of Florida determined that the trial court's exclusion of the defendant's proffered expert on his trial counsel's ineffective ness was proper. 969 So. 2d at 1058-59. There, the court recognized that the Strickland reasonable ness prong does not require expert opinion, finding that “[t]testimony is not required as to whether the actions taken [by trial counsel] were ‘reasonable,' as this is a matter of law to be made by the judge after consideration of the factual testimony.” Id. at 1059.
An expert opinion that professional norms exist and that trial counsel's actions fell below those standards of effective representation conflicts with the trial court's mixed decision.
In Freund v. Butterworth, 165 F.3d 839, 863 n.34 (11th Cir.
Court of Appeals for the Eleventh Circuit stated, “[p]permitting ‘expert' testimony to establish ineffective assistance is inconsistent with our recognition that the issue involved is a mixed question of law and fact that the court decides.” Specifically, the expert witness in Freund “opined that the law firm's representation of [defendant] fell below the constitutional standard of effective representation because it presented conflicts of interest with the law firm's prior representations
(4th Cir. 2000), in upholding the district court's denial of an evidentiary hearing, the U.S Court of Appeals for the Fourth Circuit stated that the defendant “has not explicated how the testimony of a ‘legal expert' assessing trial counsel's performance would aid a federal court in this particular case in making the legal determination whether trial counsel was constitutionally ineffective.” The Second District Court of Appeal of Florida has also found that the testimony of an expert to explain Florida law is inappropriate:
t]his court has repeatedly held that “opinion testimony as to the legal interpretation of Florida law is not a proper subject of expert testimony.” See, e.g., Brophy v. Condon (In re Estate of Williams), 771 So.2d 7, 8 (Fla. 2d DCA 2000). Construction of language in a deed “is a legal determination to be made by the trial judge, with the assistance of counsels' legal arguments, not by way of ‘expert opinion.' ” See Lee County v. Barnett Banks, Inc., 711 So.2d 34, 34 (Fla. 2d DCA 1997) (discussing expert opinion about statutory construction).
Hann v. Balogh, 920 So.2d 1250, 1251-1252 (Fla. 2d DCA 2006).
Several other states uphold the trial court's decision not to allow the testimony of a legal expert on ineffective ness.
S.W.2d 524 (Mo. 1990) (upholding lower court's exclusion of expert attorney testimony); State v. Ohler, 366 N.W.2d 771 (Neb. 1985) (holding not error for lower court to exclude expert testimony on ineffective ness); Lytle v. Jordan, 22 P.3d 666 (N.M. 2001) (stating it is superfluous for expert to advise court on application of law on ultimate issue of effectiveness); State v. Moore, 641 A.2d 268 (N.J. Super. Ct.
(1994) (upholding denial of evidentiary hearing where the only proffered evidence was testimony of expert attorney witness).
Here, Defendant sought to present Mr. Alvarez for the sole purpose of identifying actions of Defendant's trial counsel that would be shown to be outside professional norms. (PCR-SR. 11) Defendant presently clarifies the specific purpose of Mr.
Alvarez’s testimony: to explain that not discovering Chaplain Bizarro was unreasonable. Mr. Alvarez’s testimony pointing out his opinion regarding how Defendant's trial counsel was deficient would not have aided the trial court in understanding the factual evidence and would have encroached into the lower court's legal analysis under Strickland. Strickland, 466 U.S.
State, 748 So. 2d 1028, 1033-35 (Fla. 1999) (explaining factual evidence required to prove ineffective ness claim); Casey, 969 So. 2d at 1058. As such, Mr. Alvarez’s testimony was properly excluded.
Moreover, even if Defendant proffered Mr. Alvarez’s testimony in order to provide the post conviction court with evidence regarding the standard of practice, Defendant is still not entitled to relief. As recently ruled by this Court, a post conviction court does not abuse its discretion in refusing to hear such testimony as this is only one form of the various “guides” a post conviction court may consider when making its legal determination. Lynch v. State, 33 Fla. L. Weekly S880, S892 (Fla. Nov. 6, 2008) Having other guides available to it, the post conviction court did not abuse its discretion in preventing the testimony of Mr. Alvarez, even if it had been offered as evidence of prevailing professional norms.
Furthermore, where, as here, “the presiding post conviction judge has been adjudicating capital cases in Florida for many years” and tried numerous capital cases for many years prior to taking the bench, Mr. Alvarez’s testimony could not have assisted the post conviction court in any way. Lynch, 33 Fla.
Weekly at S892. The useful ness of testimony regarding what the standard of practice was at a particular juncture in history necessarily goes hand in hand with the relative inexperience of the judge making the Strickland analysis. Lynch, 33 Fla. L.
Furthermore, as opinion testimony,6 such evidence is only admissible where useful to the trier of fact, in this case, the post conviction judge. Here, Mr. Alvarez’s testimony was simply irrelevant and inadmissible as it was not beyond the common understanding of, and would not have aided, this particular post conviction court in making its decision. § If such testimony is not opinion, but fact testimony, it is unclear how such testimony would be incorporated into the traditional Strickland evidentiary hearing and analysis, as the prevailing professional norms at a specific time in history is not a “fact” regarding what occurred at trial to establish an ineffective ness claim. Compare Stephens, 748 So. 2d at 1033-35 (explaining difference between facts heard and opinion, i.e.
decision, rendered) with § 90.401, Fla. Stat. (defining relevant evidence as evidence tending to prove or disprove a material fact).
III. THE TRIAL COURT PROPERLY DENIED THE CLAIM REGARDING
INVESTIGATION AND PRESENTATION OF MITIGATION.
Defendant next asserts that the lower court erred in denying his claim that his counsel was ineffective for failing to investigate and present mitigating evidence. Defendant claims that his counsel knew or should have known about alleged sexual abuse and Defendant's relationship with Chaplain Bizarro.
Defendant argues that counsel was deficient because he was required to investigate these areas to be effective. However, the lower court properly rejected this claim after an evidentiary hearing.
The State notes that Defendant raised this issue as well as the issue of alleged ineffective ness for failing to go to Columbia sooner in the lower court. Once again, to the extent Defendant has not briefed this additional argument, he has waived review of the trial court's ruling. Anderson v. State, 822 So. 2d 1261, 1268 (Fla. 2002) Moreover, the lower court properly denied the claim based on both arguments.
In denying this claim after an evidentiary hearing, the lower court held:
Defendant alleges that trial counsel did not adequately review and investigate his background.
Specifically, Defendant alleges that counsel listed Chaplain Bizarro late as a witness, and following a Richardson [sic] hearing, the Chaplain was not allowed to testify.
the evidentiary hearing, Rafael Rodriguez, one of Defendant's trial attorneys testified that the Defendant did not have a church going background and he didn't pursue who the spiritual advisory was as Defendant was not religious. Religion was not prevalent in the Defendant's life at the time he was arrested, according to both the Defendant and his sister Nely.
While Defendant's sisters and Marta Galindo testified that the Defendant spoke to them of Chaplain Bizarro, they testified that they did not mention this to the attorneys. Also, the testimony at the evidentiary hearing revealed that the Defendant talked to Chaplain Bizarro on Saturday morning. Defendant's sisters and Marta would visit on Saturday, after his visit with the Chaplain. As Defendant's meeting with the Chaplain preceded his visits with the family, and as he was instructed not to talk to other inmates, given the limited stimuli, Defendant's visit with the Chaplain is one of the few new things he had to talk about.
Both Rafael Rodriguez and Jeffery Fink, lead trial counsel, testified that they did not discover the content of Chaplain Bizarro's alleged conversation with Defendant regarding sexual abuse until after the penalty phase was in progress. Chaplain Bizarro was initially subpoenaed to testify on the issue of future dangerous ness and to show the Defendant was a model prisoner. Mr. Fink testified that the Chaplain would not discuss the contents of his conversations with the defendant until the Defendant gave him permission to disclose the contents.
Additionally, on direct appeal, Defendant argued that the exclusion of the chaplain's testimony was error.
As noted in the Florida Supreme Court opinion, one of the reasons the trial court excluded the testimony of the chaplain is that the testimony is cumulative to that of Dr. Olga Hervis, a psycho therapist. Conde, 860 So. 2d at 958. The court found that “even if the [trial] court erred in excluding the chaplain's testimony, the error was harmless beyond a reasonable doubt. [sic] Conde,
Defendant cannot show prejudice and meet that prong of the Strickland test.
record. As noted by the Florida Supreme Court, the trial court found mitigating evidence of alleged physical, mental, and sexual abuse controverted by other evidence that Condes maternal and paternal grand mothers shared in his upbringing, and the court found the testimony of his stepmother quite credible that he was never abused or mistreated by her or his father. Conde,
Defendant also alleges that counsel was ineffective by failing to timely contact family members in Colombia.
At the evidentiary hearing, Nely Conde testified that she met with Laura Blankman, the investigator, many times. Laura asked her questions about the family here and in Columbia.
Attorney Rafael Rodriguez testified that he received a list of family members who lived in Colombia. Nely Conde facilitated a meeting with the family members in Baranquilla in December, 1999. Mr. Rodriguez was in Baranquilla for 5 days, meeting with the family members with Laura Blankman, who video taped the meetings. He discussed the possibility of the family members coming to Florida to testify, but the family was poor and could not afford to lose any income.
They looked to Carlos Andreas for money, as he had won the lottery. Colombia was also in the middle of a guerilla war, which complicated matters. He thought that someone on the defense team had talked to all relevant family members. He questioned as many relatives and friends as he could about the possibility of the Defendant being sexually abused.
to Colombia sooner. It is unlikely that family members would have come to testify at trial. As counsel talked to all relevant family members, and some of their testimony was given to the jury by Olga Hervis, the result would not have been different.
Defendant cannot show prejudice under Strickland, supra. Additionally, the record reflects that counsel called numerous witnesses to testify on Defendant's behalf.
This claim is denied.
a claim of ineffective assistance of counsel after an evidentiary hearing, this Court is required to give reference to the lower court's findings of fact to the extent that they are supported by competent, substantial evidence. Stephens v. State, 748 So. 2d 1028, 1033- 34 (Fla. 1999). However, this Court may independently review the lower court's determination of whether those facts support findings of deficiency and prejudice to support a holding that counsel was ineffective. Id.
Here, the lower court's findings of fact regarding the testimony of the witnesses offered to explain the circumstances of Chaplain Bizarro's relationship with Defendant and trial counsel's knowledge of that relationship are fully supported by competent, substantial evidence. Each of the witnesses the lower court named did, in fact, testify in accordance with the lower court's description of their testimony regarding their knowledge of Defendant's relationship with Chaplain Bizarro prior to trial and Defendant's confession to him regarding prior sexual abuse. (PCR. 848-50, 858, 862, 867, 874-76, 890; PCR-SR.
6-9) Mr. Rodriguez testified that he was not aware that Defendant was religious, and that religion was not a part of his life. (PCR-SR. (7) Marta Galindo and Defendant's sisters, Jennie Carrazana and Nelly Conde, testified that while they were aware of Chaplain Bizarro, due to their Saturday morning visits, they never told the trial attorneys. (PCR. 848-851, 858, 862, 867, 875-76, 890) Mr. Rodriguez and Mr. Fink testified that they did not learn that Defendant confessed the sexual abuse to Chaplain Bizarro until after the penalty phase began, as he had been subpoenaed to testify regarding Defendant's good behavior in jail and would not discuss Defendant without Defendant's prior consent. (PCR-SR 6-8) Likewise, the lower court's findings of fact regarding the testimony of the witnesses offered to explain why counsel did not go to Columbia sooner are fully supported by competent, substantial evidence. Nelly Conde testified that she spoke with both Mr. Fink and Laura Blankman regarding the family in Columbia. (PCR. 872-74) Mr. Rodriguez testified that he went to Columbia in 1999 and stayed in a hotel to meet with family members due to the on-going guerrilla war. After talking to Defendant's family in Columbia for five days, Mr. Rodriguez was unable to secure their testimony during the trial due to financial hard ship and an unwillingness to talk to him. (PCR- SR. 8) Because the lower court's findings of fact are supported by competent, substantial evidence, this Court is required to defer to those findings. Stephens, 748 So. 2d at 1033-34. Given these findings of fact, the lower court was correct to find that Defendant had failed to establish that he was prejudiced due to counsel's failure to discover Chaplain Bizarro sooner or travel to Columbia sooner.
Counsel is not ineffective where the alleged error would not entitled him to a new trial. Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003). Here, as noted by the post conviction court, this Court already determined that Defendant was not harmed by the exclusion of Chaplain Bizarro's testimony. Conde, Likewise, counsel is not ineffective for failing to present cumulative testimony. Valle v. State, 705 So. 2d 1331, 1334-35 (Fla. 1997). Here, as likewise previously noted by this Court, Dr. Olga Hervis testified regarding Defendant's self-reported sexual abuse. Chaplain Bizarro's testimony would have been cumulative to this self-same evidence of abuse. Additionally, other family members testified on Defendant's behalf regarding his upbringing and childhood. Presenting additional family members from Columbia would have been cumulative to the evidence presented at trial.
Furthermore, counsel is not ineffective for failing to present evidence that was not available to him the time of trial. State v. Riechmann, 777 So. 2d 342, 354-55 (Fla. 2000).
(claim of ineffective assistance properly denied where evidence did not definitely show that evidence was available at time of trial). Here, counsel testified that Chaplain Bizarro would not speak with them unless and until Defendant relinquished any confidentiality. As such, prior to the morning Chaplain Bizarro came to respond to subpoena, trial counsel had no way of knowing that Defendant told him of sexual abuse. Additionally, Defendant's family in Columbia could not travel to the United States because of financial hard ship, inability to get visas and on-going warfare in Columbia. (PCR-SR. 8) Finally, Defendant would have received little benefit from Chaplain Bizarro's testimony or further testimony from family members. The trial court, as noted by the post conviction court and previously by this Court, found the testimony of Defendant's grandmother and father that he was never abused or mistreated credible. (PCR. 784); Conde, 860 So. 2d at 957. Since the evidence was not credible, counsel cannot be deemed ineffective for failing to present it. Griffin v. State, 866 So. 2d 1, 9 (2003).
Given that the failure to present Chaplain Bizarro was already found to not have harmed Defendant, the cumulative nature of the testimony, and the lack of credibility the lower court gave to Defendant's allegations of abuse, the lower court properly determined that the presentation of the post conviction evidence would not have created a reasonable probability that Defendant would not have been sentenced to death. Johnson v.
(Fla. 2005)(counsel not ineffective for failing to present evidence that would not create a reasonable probability that “the jury ‘would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'”)(quoting Strickland v. Washington, 466 U.S.
2000)(failing to present cumulative evidence is not ineffective assistance); Valle v. State, 705 So. 2d 1331, 1335 (Fla.
(1997)(same). The lower court should be affirmed.
Despite the fact that the lower court's rejection of these claims is based on factual findings fully support by the record and conclusion that are entirely in accordance with the law, Defendant appears to argue that his counsel cannot be deemed effective unless they actually under took the investigation he alleges did not take place. However, the law does not support this assertion.
691, the Court directly defined the duty that counsel had to follow to be effective was “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” In Wiggins v.
Smith, 539 U.S. 510 (2003), the case upon which Defendant relies, the Court reiterated that this was the duty imposed for counsel to be considered effective and that it was not altering the nature of counsel's duty:
In finding that Schlaich and Nethercott's investigation did not meet Strickland's performance standards, we emphasized that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.
Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of 2052. We base our conclusion on the much more limited principle that “strategic choices made after less than complete investigation are reasonable” only to the extent that “reasonable professional judgments support the limitations on investigation.” Id., at 690-691, 80 L Ed 2d 674, 104 S Ct 2052. A decision not to investigate thus “must be directly assessed for reasonable ness in all the circumstances.” Id., at 691, 80 L Ed 2d 674, 104 S Ct 2052.
533. In fact, the United States Supreme Court has rejected claims that counsel was ineffective for failing to investigate mitigation more thoroughly on many occasions.
the law does not support Defendant's assertion that counsel was deficient merely because he did not investigate the mitigation that Defendant believes he should have as thoroughly as Defendant believes he should have. The lower court should be affirmed.
Further, counsel's investigation regarding mitigation was reasonable. Counsel obtained a psychological evaluation of Defendant wherein Defendant acknowledged being sexually abused, which counsel suspected, and presented this evidence during the penalty phase. Having learned of family members in Columbia from Defendant's sister, counsel went to Columbia during a guerilla war, interviewed family members, sought to have them testify at trial, but was thwarted by lack of cooperation and fund ing. (PCR-SR. 8) No one ever mentioned to counsel that Defendant was talking to Chaplain Bizarro and counsel had no reason to believe Defendant was religious, indeed, even Chaplain Bizarro acknowledged that Defendant was not religious. (T.
9311) Once known to counsel, counsel attempted to talk to Chaplain Bizarro who initially refused to speak to counsel due to confidentiality with Defendant, was subpoenaed to testify regarding Defendant's good behavior in jail, and right before his testimony, informed counsel that Defendant acknowledged prior sexual abuse to him. The investigation under taken was reasonable.
The case relied upon by Defendant does not compel a different result. In Wiggins, the Court found that counsel's decision to limit their investigation into Defendant's family background was not reasonable because the limited investigation that counsel had conducted showed that Defendant had been horribly abused as a child, which would have been powerful mitigation, and counsel's statement that they were concentrating on Defendant's lack of responsibility for the crime was inconsistent with their actions at the time of trial. Wiggins, 539 U.S. at 523-27. As Wiggins involved considerably less investigation than that under taken here, it does not support Defendant's assertion that counsel's investigation was not reasonable.
Nor does Defendant's reliance on the ABA guidelines provide a basis for relief. Defendant refers to the ABA guidelines as if they were rules that must be followed for counsel to be effective. However, in Strickland v. Washington, 466 U.S. 668 (1984), the Court clearly rejected this argument:
Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed.
(1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide altitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Id. at 688-89 (emphasis added) (internal citation omitted).
Wiggins did not alter this holding. 539 U.S. at 522-24.
Therefore, to the extent Defendant argues that defense counsel was ineffective because of an alleged violation of the ABA guidelines, this is not the law. The lower court should be affirmed.
Even if Defendant had shown that counsel was deficient, the lower court should still be affirmed. As seen above, the court found that Defendant was not prejudiced. As the Court noted in Strickland, it is not necessary for a court to engage in a deficiency determination if Defendant was not prejudiced by the alleged deficiency. Strickland, 466 U.S. at 697. Thus, since the lower court properly determined that there was no prejudice, it should be affirmed.
IV. THE CLAIM REGARDING THE ALLEGED PLEA OFFER WAS
PROPERLY DENIED.
Defendant next asserts that the lower court erred in denying his claim that his rights were somehow violated because plea negotiations did not result in a final plea agreement.
However, the lower court properly denied this claim.
This Court has repeatedly held that issues that could have and should have been raised on direct appeal are procedurally barred. Pooler v. State, 980 So. 2d 460, 470 (Fla. 2008); Smith
673, 675 (Fla. 1980). This Court has agreed that a claim could and should have been raised on direct appeal when it was thoroughly addressed at the time of trial. Kimbrough v. State, 886 So. 2d 965, 983 (Fla. 2004). Moreover, this Court has held that attempting to raise an issue that is procedurally barred in the guise of a claim of ineffective assistance of counsel does not lift the bar. Rodriguez v. State, 919 So. 2d 1252, 1262 n.7 (Fla. 2005); Freeman v. State, 761 So. 2d 1055, 1067 (Fla.
(2000). Applying this precedent, the lower court properly denied this claim as procedurally barred, since the record reflects that the issue was thoroughly addressed at the time of trial.
Prior to trial, Defendant entered into plea negotiations with the County Attorney. (R. 427) According to Defendant, the County Attorney represented to him that the State had informed him that it would not offer a plea agreement but “might be willing to stand by, without serious objection and without appeal,” if Defendant entered into a plea agreement with the trial court. (R. 427) During an ex parte hearing regarding a cost motion, Defendant and the County Attorney discussed the possibility of a plea agreement with the trial court. (R. 416, 427-28, T. 625-27) As the State was not present at the hearing, the trial court informed Defendant and the County Attorney that the State would need to be present to discuss a plea agreement but indicated that it would be willing to entertain the proposed court offered plea agreement. (R. 416, 427, T. 625-26) At a subsequent unrecorded hearing at which the State was present, Defendant again proposed entering into a plea agreement with the trial court. (R. 416, 428) During the course of this hearing, the trial court indicated that it would be willing to extend a court offered plea agreement if the State would promise not to appeal the plea, the victims' families agreed to the plea and a sentence could be structure to ensure that Defendant would never be released from prison. (R. 416, 428, T. 619, 627- At a subsequent hearing, the State moved to refuse the trial judge because it did not believe that it could receive a fair hearing before the judge based on his participation in plea negotiation, which were in part ex parte. (T. 606) The trial court initially denied the motion. (T. 607) The State then presented an objection to the court offered plea and presented the testimony of several family members of the victims, who testified that they objected to the plea agreement. (T. 607-16) The State indicated that the family members had determined to object to the plea agreement after the unrecorded hearing. (T.
616-17) After considering this evidence, the trial court indicated that its conditions for accepting the plea were not satisfied and that it believed the State had acted in bad faith in moving to disqualify it to cover up the fact that the State had not made it fully aware of the State's position. (T. 619- 20) Because it had commented on the truth of the allegations in the State's motion for disqualification, it then granted the motion to disqualify. (T. 620) After the trial court announced this ruling, Defendant objected, claiming that the State had induced the trial court to act improperly. (T. 621-35) The alleged inducement consisted of its alleged statement to the County Attorney that it might be willing to allow a court offered plea without strenuous objection and its indication to the trial court that its conditions for the plea could be satisfied. Id. Defendant insisted that he should be allowed to enter the court offered plea even though the conditions precedent, which he acknowledged existed, had not been met. Id. Defendant further suggested that the State had convinced the victims' families to object and that discovery and a hearing were necessary on this allegation.
However, the trial court stood by its ruling. (T. 627-36) Thereafter, Defendant moved to enforced “the plea agreement” or to preclude the imposition of a death sentence. (R. 426-33) In this motion, Defendant claimed that he had a “de facto plea agreement” when the State indicated that it believed that the prior judge's conditions precedent to the acceptance of a court offered plea could be met, that he was prejudiced, inter alia, because “important penalty phase witnesses, who once would have accepted a life sentence for Defendant, were influence and turned,” and that he was now entitled to have the alleged plea agreement accepted or the imposition of the death penalty precluded. Id. However, Defendant admitted in the motion that the State had never offered a plea or indicated a willingness to make such an offer and that the State had always indicated that it would object to a court offered plea. Id.
Defendant subsequently moved for disclosure of contact information for all of the victims' family members and friends who either appeared at the hearing where the original trial judge refused himself or spoke to the State or police between the time Defendant informed the State of his ex parte communication with the trial court about a plea offer and the hearing. (R. 434-35) At the hearing on this motion, Defendant insisted that he needed to be able to conduct depositions of the prosecutor and the people he spoke with concerning the possibility of a plea to be able to go forward with his motion to enforced the “plea.” (T. 710-11) The State responded that it did not believe the request was appropriate as the people involved would not be discover able witnesses, the request invaded their right to privacy, the request also sought work product and the claim did not appear
711-12) Defendant insisted that he needed conduct information because he planned to present evidence at a hearing on his motion to enforced the “plea.” (T. 712-13) The trial court denied the motion, stating that it viewed the issue as a legal issue. (T. 712-15) Defendant then filed a memorandum of law in support of the motion to enforced the “plea.” (T. 441-46) In that pleading, Defendant insisted that an evidentiary hearing was necessary on the motion at which he could attempt to prove that the State coerced the family members to object to the court offered plea.
Id.
the motion to enforced the “plea,” Defendant argued that he was entitled to evidentiary hearing to prove that the State prevented the entry of a plea through surreptitious means and that he was entitled to a life sentence because he had “detrimentally relied” on the negotiations with the court concerning the plea. (T. 730-32) The State responded that it did not concede that the facts Defendant alleged were true, that it instead believed they were an unprofessional personal attack on the prosecutor and that it did not matter because Defendant had never had a plea accepted, such that there was nothing to enforced. (T. 732-33) Further, the State asserted that there had been no harm to Defendant, as he stood in the same position he was before he tried to get the court to offer a plea. (T. 733-34) After considering these arguments, the trial court denied the motion. (T. 734) As can be seen from the foregoing, Defendant raised and litigated the issue of whether he was entitled to a life sentence based on the alleged plea offer thoroughly at the time of trial. As such, any issue about it could have and should have been raised on direct appeal. Kimbrough,
983. The lower court properly denied this claim as procedurally barred. Pooler, 980 So. 2d at 470; Smith, 445 So. 2d at 325;
Demps, 416 So. 2d at 809 (Fla. 1982); Meeks, 382 So. 2d at 675.
It should be affirmed.
claim had not been barred, the lower court would still have properly denied this claim because it was insufficiently plead. This Court has held that conclusory allegations are insufficient to present a claim in a post conviction motion. Ragsdale v. State, 720 So. 2d 203, 207 (Fla.
(1998). Here, Defendant merely presented this claim in conclusory terms. (PCR. 83-84) In fact, Defendant merely alleged that a plea was offered subject to certain conditions precedent, that the conditions precedent were not met, that it became public knowledge that Defendant had attempted to enter a plea and that friends and coworkers no longer wanted to be involved and he lost touch with several people. However, Defendant did not identify these people, suggest what information they had and suggest how this affected anything. Moreover, his entire allegation regarding counsel allegedly being ineffective regarding this issue consisted of a single sentence: “Trial counsel's failure to present the prejudice suffered by the defense due to the withdrawals or denial of the plea was deficient, thereby prejudicing” Defendant. (PCR. 84) Given the conclusory nature of this claim, the lower court properly denied it as insufficiently plead. Ragsdale, 720 So. 2d at 207. It should be affirmed.
not barred and was sufficiently plead, Defendant would still be entitled to no relief. The record refuses the few facts that Defendant did allege. In his motion, Defendant suggested that the State offered a plea agreement conditioned on acceptance by the trial court and agreement of the victims' families. However, as seen above, the record reflects that the State did not offer a plea agreement.
Instead, the record shows that the State refused to do so. The record further reflects that the State never even agreed not to object to a court offered plea. Instead, it merely suggested that it might not vigorously object and pursue an appeal based on its objection. Further, the trial record shows that Defendant did present the testimony of numerous coworkers, friends and family members at the penalty phase. (T. 8046-8243, 8318-50, 8360-8438) As such, the record refuses the claims that the State ever made a plea offer and that the court-offered plea prevent Defendant from presenting mitigation. The denial of the claim should be affirmed.
Moreover, the claim is without merit as a matter of law.
considered and rejected a claim that alleged government misconduct deprived a defendant of an opportunity to enter into a plea bargain. In doing so, the Court stated, “[b]ut there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty.” Id. at 562. This Court has similarly rejected the assertion that a defendant has a right to bargain for a plea. Parker v. State, 790 So. 2d 1033, 1034 (Fla. 2001). As such, the courts of this State have rejected arguments that a defendant is deprived of some right because a condition placed on the acceptance of a plea made it impossible for the defendant to enter a plea. Winokur v. State, 605 So. 2d 100, 102 (Fla. 4th DCA 1992)(rejecting claim that requirement that codefendants also enter plea deprive defendant of due process).
Additionally, this Court has held that a plea offer is not binding until it is actually accepted by the court and required parties and the defendant is actually sentenced under the agreement. Davis v. State, 308 So. 2d 27 (Fla. 1975); see also Rollman v. State, 887 So. 2d 1233 (Fla. 2004); Goins v. State, 672 So. 2d 30, 31 (Fla. 1996). As such, this Court has rejected the assertion that a defendant is entitled to performance of the terms of the proposed plea agreement when the court decides not to accept the terms before the sentence is imposed. Rollman, 887 So. 2d at 1235-36; Davis, 308 So. 2d at 29. This Court has stated that this principle applied regardless of why the plea was not accepted. Rollman, 887 So. 2d at 1235 (“We continue to agree that a trial court retains the authority to alter a prior plea arrangement up until the time sentence is imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence. It does not matter whether the judge simply changed his mind, or whether there was a misunderstanding.”)(emphasis added). The United States Supreme Court has also rejected the concept that a defendant is entitled to specific performance of a plea offer, where the offer was withdrawn before it was fully this conclusion, the Court stated, “Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.” Id. at 511. In fact, this Court has embodied this principle in Fla. R. Crim. P. 3.172(g): “No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the enquiries, advise ments, and determination required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.” (emphasis added).
Given this body of law, Defendant's claim that he was entitled to a remedy because the plea he sought was not consummated is without merit as a matter of law. This is particularly true here. As Defendant has always admitted, the court offered plea was continent on the lack of objection by the victims' families and that condition was never met. As such, the lower court also properly denied this claim because it was without merit as a matter of law. The denial of the claim should be affirmed.
Further, despite the fact that the claim was barred, was insufficiently plead and was without merit as a matter of law, the lower court allowed Defendant to present evidence regarding this claim at the evidentiary hearing. The only evidence that Defendant presented in support of this claim was the testimony of Martha Galindo and Nelly Conde, who stated in general terms that Defendant's inability to enter the plea caused them and others to become disillusioned with the system and less willing to assist. (PCR. 851-53, 880-82) However, the only specific harm to Defendant that either could identify was that Defendant's best friend William allegedly moved and could not be contacted to testify at trial. (PCR. 851-53, 880-82) Yet, the record reflects that Defendant's friend William Serra did testify at the penalty phase. (T. 8046-79) As such, Defendant failed to prove that he was prejudiced because he was unable to satisfy the conditions precedent to have the trial court extend its plea offer. The denial of the claim should be affirmed.
V. THE LOWER COURT PROPERLY DENIED DEFENDANT'S RING CLAIM
Defendant finally asserts that the lower court erred in denying his claim that his sentence violated Ring v. Arizona, 536 U.S. 584 (2002). However, the lower court properly denied this claim as procedurally barred and without merit.
This Court has repeatedly held that claims that were raised and rejected on direct appeal are procedurally barred in post conviction proceedings. Pooler v. State, 980 So. 2d 460, 470 (Fla. 2008); Rogers v. State, 957 So. 2d 538, 553 (Fla. 2007);
Rodriguez v. State, 919 So. 2d 1252, 1262 n.7 (Fla. 2005);
Turner v. Dugger, 614 So. 2d 1075, 1078 (Fla. 1992). Here, Defendant claimed on direct appeal that Florida’s capital sentence scheme was unconstitutional under Apprendi v. New Case No. 00-789, at 94-96. Defendant subsequently asserted that Ring showed that this was true. Reply Brief of Appellant, FSC Case No. 00-789, at 34-35. This Court rejected this claim, noting that Defendant's death sentence was supported by the prior violent felony aggravator. Conde v. State, 860 So. 2d 930, 959 (Fla. 2003). Because this issue was raised and rejected on direct appeal, the lower court properly determined that this claim was procedurally barred. It should be affirmed.
Moreover, this Court has repeatedly rejected the claim that Florida capital sentencing is unconstitutional under Ring.
Bevel v. State, 983 So. 2d 505, 525-26 (Fla. 2008); Bryant v.
State, 865 So. 2d 1259, 1265 (Fla. 2004); Jones v. State, 855 So. 2d 611, 619 (Fla. 2003). As such, the lower court also properly found that this claim was merit less. It should be affirmed.
CONCLUSION
For the foregoing reasons, the order denying the motion for post conviction relief should be affirmed.
Respectfully submitted,
Attorney General Tallahassee, Florida
LISA A. DAVIS
Assistant Attorney General Florida Bar No. 672904
Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131
PH. (305) 377-5441
FAX (305) 377-5655
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LISA A. DAVIS
Assistant Attorney General
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LISA A. DAVIS
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