190 So.3d 1012 (Fla. 2016), SC12-2619, Ibar v. State

Docket Nº:SC12-2619, SC12-522
Citation:190 So.3d 1012, 41 Fla.L.Weekly S 30
Opinion Judge:PER CURIAM.
Party Name:PABLO IBAR, Appellant, v. STATE OF FLORIDA, Appellee. PABLO IBAR, Petitioner, v. JULIE L. JONES, etc., Respondent
Attorney:Benjamin Samuel Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, Florida, for Appellant/Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Respondent.
Judge Panel:LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur. LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur.QUINCE, J., dissents with an opinion, in which CANADY, J., concurs. LEWIS, J., dissents. QUINCE, J., dissenting. CANADY, J., concurs.
Case Date:February 04, 2016
Court:Supreme Court of Florida
 
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Page 1012

190 So.3d 1012 (Fla. 2016)

41 Fla.L.Weekly S 30

PABLO IBAR, Appellant,

v.

STATE OF FLORIDA, Appellee.

PABLO IBAR, Petitioner,

v.

JULIE L. JONES, etc., Respondent

Nos. SC12-2619, SC12-522

Supreme Court of Florida

February 4, 2016

Two Cases: An Appeal from the Circuit Court in and for Broward County, Jeffrey Richard Levenson, Judge - Case No. 061994CF013062B88810. And an Original Proceeding -- Habeas Corpus.

Benjamin Samuel Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, Florida, for Appellant/Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Respondent.

LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur. QUINCE, J., dissents with an opinion, in which CANADY, J., concurs. LEWIS, J., dissents.

OPINION

Per Curiam.

Pablo Ibar appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

In this case, there was a lack of physical evidence connecting Ibar to the triple murders. Ibar's DNA was not found on a blue t-shirt recovered from the crime scene which was allegedly used to partially cover the face of the perpetrator whom the State claimed to have been Ibar. Ibar never confessed to the crime as he steadfastly proclaimed his innocence, presented an alibi as to his whereabouts, and has always maintained his innocence.

The crux of the State's case was a grainy video of the murders taken by a video surveillance camera installed in the home of Casmir Sucharski, who was one of the victims. Ibar was identified as one of the perpetrators from photographs distilled from this videotape. Consequently, identification was key.

Initially, Ibar was tried with codefendant Seth Penalver, but the first trial ended with a hung jury. Thereafter, Penalver, in a separate trial, was convicted of committing these murders and sentenced to death. This Court reversed Penalver's murder convictions based on numerous errors, Penalver v. State, 926 So.2d 1118, 1137-38 (Fla. 2006), and Penalver was acquitted on retrial. An essential part of Penalver's defense was the assertion that he was not the subject in the videotape and in support of this he utilized an expert in forensic anthropology. In Ibar's trial, Ibar's private defense attorney, Kayo Morgan, failed to present a facial identification expert or forensic anthropologist despite Ibar's request and his defense lawyer's agreement to do so. At the postconviction evidentiary hearing, Ibar's attorney, who detailed a litany of personal and professional issues that were occurring at the time of trial, testified that he did not understand " why [he] failed in this absolutely critical feature of the case" in not having a facial identification expert testify, among other failings.

As this record bears out, there was simply no excuse for the numerous deficiencies and failures of Ibar's defense attorney. None of the failures can be attributed to strategic moves nor could remotely constitute acceptable conduct for an attorney defending a first-degree murder charge with the death penalty being sought. Under any definition of " deficient performance," Morgan could not be deemed to be functioning as defense counsel must perform to fulfill his or her crucial obligations to the defendant under the Sixth Amendment. While there were numerous deficiencies in performance, the most salient was the failure of trial counsel to present a facial identification expert to explain the physical differences between Ibar and the perpetrator alleged to have been him in the video, and to demonstrate that the quality of the images were so poor that they were inadequate to make a reliable identification. As we more fully explain, Ibar has established prejudice, given the relatively weak case against Ibar with no physical evidence linking him to the crime, the critical role of his identification derived from the video, and the errors we previously identified in Ibar's direct appeal. Simply put, we cannot and do not have confidence in the outcome of this trial. Accordingly, we reverse the trial court's denial of postconviction relief and remand for a new trial.

BACKGROUND

The facts of this case are set forth in Ibar's direct appeal of his first-degree murder convictions and sentences of death: On August 25, 1994, Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder, one count of burglary, one count of robbery, and one count of attempted robbery. Penalver and Ibar were initially tried together. The first jury trial ended with a hung jury. Ibar and Penalver were eventually tried separately. Both Ibar and Penalver were ultimately convicted and sentenced to death.

On Sunday, June 26, 1994, a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay. The car was registered to Casmir Sucharski, owner of a nightclub called Casey's Nickelodeon. The officer who discovered the car notified the Miramar Police Department. A Miramar police officer went to Sucharski's home to tell him that his car had been found. The officer knocked on the door and received no answer. He stuck his card in the door and left.

The next morning, Monday, June 27, 1994, Marie Rogers' mother reported her missing to the Broward County Sheriff's Department. Rogers had gone to Casey's Nickelodeon on Saturday, June 25, 1994, with her friend, Sharon Anderson, and did not return home. Deputy Christopher Schaub went to Casey's Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson. Schaub then went to Sucharski's residence. Anderson's car was in the driveway but no one answered the door. Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch. He peered inside and saw three bodies.

The police identified the individuals found in the residence as Sucharski, Rogers, and Anderson. All three died of gunshot wounds. Because Sucharski had recently installed a video surveillance camera in his home, there was a videotape of the actual murders. The tape revealed that on Sunday, June 26, 1994, at 7:18 a.m., two men entered through the back sliding door of Sucharski's home. The intruder alleged to be Ibar initially had something covering his face, but he eventually removed it. The other intruder, alleged to be Seth Penalver, wore a cap and sunglasses, which were never removed, and carried a firearm. The videotape showed that one of the intruders had a Tec--9 semiautomatic handgun with him when he entered the home. The other intruder displayed a handgun only after he went into another room and left the camera's view. At one point, the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face, knocked him to the floor, and beat him on the neck, face, and body. This attack on Sucharski lasted for nearly twenty-two minutes. The man later identified as Ibar shot Sucharski, Rogers, and Anderson in the back of the head. The intruder alleged to be Penalver then shot Anderson and Sucharski in the back.

During this time, the intruders searched Sucharski's home. They rummaged through the home and entered the bedrooms and the garage. Sucharski was searched and his boots removed. Sucharski struggled and was repeatedly hit by both intruders. The intruders were seen putting things in their pockets. The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash, carried a gun, and owned a Cartier watch. The watch was not found and Sucharski's gun holster was empty.

Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies. Three weeks after the murders, the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer. The man in custody at the Metro-Dade Police Department was Pablo Ibar. Ibar was interviewed by Miramar investigators. He told police he lived with his mother, and that on the night of the murders he had been out with his girlfriend, whom he called both Latasha and Natasha.

Ibar actually lived with several friends in a rented home on Lee Street in Hollywood, Florida. One of his roommates was Jean Klimeczko. Klimeczko initially identified Ibar and Penalver as the men on the videotape. Klimeczko told police that early on the morning of the murders, Ibar and Penalver rushed into the Lee Street home, grabbed a Tec-9 that was kept at the house, and left. At the second trial, however...

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