Agatheas v. State, No. 4D06-4870 (Fla. App. 12/16/2009)
| Decision Date | 16 December 2009 |
| Docket Number | No. 4D06-4870.,4D06-4870. |
| Parties | NICHOLAS AGATHEAS, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 502005CF006013AXXXXMB.
Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
After being tried and convicted of first degree murder with a firearm, Nicholas Agatheas ("the defendant") appeals. We affirm.
On September 20, 2006, the defendant was arrested for murdering Thomas Villano ("the victim"). The State's theory at trial was that the defendant hated the victim and retaliated against the victim for allegedly raping one of the defendant's friends. The State argued that, on the night of the murder, the defendant showed up at the victim's house and fatally shot him eight times in the head and neck.
The defendant's former girlfriend testified that weeks prior to the murder, she walked in on the defendant in her bedroom dressed in black clothes wearing a bandana on his face and holding a revolver-type gun in his hand. She described the defendant's appearance as that of a "gangster." When she started to laugh, he grew very serious and told her that this was the way he was now.
On the day of the murder, the defendant and the former girlfriend fought, and the defendant made arrangements to stay at a friend's house that night. The former girlfriend then went to work and did not return home until later that evening. Shortly after arriving home, she noticed that the backpack in which the defendant stored his gun was missing from her closet. She had not spoken to the defendant since their fight earlier that day. Several hours after retiring to bed that night, she was awoken by the defendant's phone call. According to the former girlfriend, the defendant called her from a pay phone and asked her to contact his friend and arrange for his friend to pick him up. The former girlfriend agreed and made the call.
A few nights later, while the former girlfriend and the defendant were watching TV, a news story aired about the victim's murder. At this time, the defendant bragged to the former girlfriend that he murdered the victim because the victim raped one of his friends. He also admitted to her that he took off his t-shirt and left it at the scene of the crime. After murdering the victim, he drove the victim's car around listening to music very loudly before abandoning it.
During the investigation of the murder, the police recovered a black tshirt with the defendant's DNA in the front yard of the victim's residence. The police also recovered the victim's vehicle near the pay phone the defendant used to call his former girlfriend on the night of the murder. The radio in the recovered vehicle was set at a high volume. Although there was evidence connecting the defendant to the crime, he was not charged at that time. It was not until the former girlfriend came forward years later that there was sufficient evidence to charge the defendant. With the former girlfriend's statement, the police arrested the defendant for the murder. At the time of the arrest, the defendant had in his possession a backpack, which contained, among other things, a .45 caliber revolver and latex gloves nestled inside another pair of gloves.
At trial, the State introduced photographs of the contents of the defendant's backpack, which included the .45 caliber revolver, latex gloves nestled inside another pair of gloves, a flashlight, batteries, a lighter, a screwdriver, and a bandana. However, as established by uncontroverted expert testimony, the gun used to murder the victim was a ".38 caliber gun or a .38 class gun." The defendant's counsel did not object at trial to the introduction of the photographs.
On appeal, the defendant claims that his trial counsel was ineffective for failing to object to the photographs of the .45 caliber revolver and the other contents of his backpack. The defendant also argues that the introduction of the photographs of the .45 caliber gun was highly prejudicial and that it was fundamental error for the trial court to admit this photograph because the State failed to connect the revolver to the murder.
We first address the defendant's ineffective assistance of counsel claim. The defendant argues that his trial counsel was ineffective for failing to object to photographs of the .45 caliber revolver and other items recovered from his backpack, and that the facts giving rise to this claim are apparent on the face of the record. See Jones v. State, 815 So. 2d 772, 772 (Fla. 4th DCA 2002) ().
An ineffective assistance of counsel claim is a mixed question of law and fact that is subject to de novo review. Bowman v. State, 748 So. 2d 1082, 1083-84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida Supreme Court cited the U.S. Supreme Court's ineffective assistance of counsel test in Strickland v. Washington, 466 U.S. 668 (1984), and noted the heavy burden a defendant faces in order to prevail on an ineffective assistance of counsel claim:
[I]n ineffective assistance of counsel claims two requirements must be satisfied: (1) ...
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