Amoros v. State, 68840

• Citation: 13 Fla. L. Weekly 560,531 So.2d 1256
• Decision Date: 15 September 1988
• Docket Number: No. 68840,68840
• Parties: 13 Fla. L. Weekly 560 Reinaldo AMOROS, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1256

531 So.2d 1256

13 Fla. L. Weekly 560

Reinaldo AMOROS, Appellant, v. STATE of Florida, Appellee.

No. 68840.

Supreme Court of Florida.

Sept. 15, 1988.

Rehearing Denied Nov. 14, 1988.

James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Reinaldo Amoros appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. This incident of domestic violence arose when Amoros murdered his former girlfriend's current boyfriend. We affirm the conviction but vacate the sentence of death and remand with instructions to the trial court to impose a sentence of life imprisonment without possibility of parole for twenty-five years.

The state's chief witness was the appellant's former girlfriend, Veronica Simmonds. The victim, Omar Rivero, was Simmonds' current boyfriend. The evidence established that on June 1, 1985, the night before the murder, Amoros had approached Simmonds as she was leaving his parents' home in a new car. After Simmonds refused to answer his questions about who owned the car, Amoros threatened to kill her. The next night, Simmonds went to the police station to report the threat while Rivero remained inside her apartment. As she left, Simmonds padlocked the back door from the outside at Rivero's request. Simmonds went to Amoros' home with a police officer, but Amoros was not there. Upon returning to her own home, she found police investigating the shooting of Rivero.

Two of Simmonds' neighbors testified that at approximately 12:30 a.m. on June 2, just prior to the shooting, a man asked them if a lady and a little girl lived in Simmonds' apartment. Receiving their affirmative answer, the man headed toward the apartment and, about two minutes later, the neighbors heard gunshots which they immediately reported to the police. Later that night, they picked Amoros' picture out of a photopack as the man they had spoken to just prior to the shooting. They also identified Amoros at trial.

An autopsy of the victim revealed three gunshot wounds, two through the right arm and one to the chest, the latter proving fatal. Evidence reflected that the victim had futilely tried to escape through the padlocked back door. On the morning following the shooting, a pistol, which a firearms identification analyst later testified had been used to fire the bullet removed from the victim's chest, was found several miles from the scene.

At trial, the state presented testimony about a prior trial, in which Amoros was acquitted of the murder of one Walter Coney, to show that the pistol which killed Coney was the same weapon used to kill Omar Rivero. Amoros' counsel sought to limit the testimony to show only that the gun had been in Amoros' possession. The state responded that it was necessary to show the bullet which killed Coney had been fired from the gun. Specifically, this testimony revealed that on April 30, 1985, a little more than a month prior to the subject killing, Amoros and a friend went to the home of Paulette Suber, whom Amoros referred to as his wife, to give her some money. After entering the home, Amoros found Paulette in the bedroom with Walter Coney. A fight erupted between Amoros and Coney, during which a shot was fired and Coney was killed. Amoros was seen holding the gun immediately following the shooting. Evidence was presented that Coney started the fight by striking Amoros with a beer can and that Coney had originally pulled the gun. Evidence was also presented that Amoros was acquitted. Before receiving evidence of the Coney incident, the trial judge, at Amoros' request, instructed the jury to consider the testimony and evidence of that incident for the limited purpose of proving identity. ¹ Thereafter, a Florida Department of Law Enforcement firearms expert testified that the bullets removed from Coney and Rivero had both been fired from the same gun.

At the instruction conference, the trial judge rejected a requested special instruction on circumstantial evidence. The jury returned a verdict of guilty of first-degree murder.

The state presented no evidence during the penalty phase. Amoros testified in his own behalf, stating he was a twenty-nine-year-old native of Cuba where he never had any criminal trouble; that he was a college graduate who had been employed in Cuba as a physical education teacher and was a former member of the Cuban national baseball team; that he was the father of two daughters, ages three years and eighteen months, for whom he always provided support; and that he had been a resident of the United States since 1980. The jury recommended Amoros be sentenced to death. At the sentencing before the trial judge, Amoros again testified in his own behalf, and his former girlfriend, Veronica Simmonds, testified that he was the father of her three-year-old daughter, for whom he had always provided financial support and paternal contact.

The trial court imposed the death penalty, finding two aggravating circumstances: (1) the murder was especially heinous, atrocious, and cruel; and (2) the murder was committed in a cold, calculated, and premeditated manner. The court concluded that nonstatutory mitigating factors were established, but determined these mitigating circumstances did not outweigh the aggravating circumstances and imposed a sentence of death.

Guilt Phase

Amoros raises two challenges in the guilt phase of this appeal. First, he argues the trial court improperly admitted similar fact evidence of the shooting of Walter Coney, for which he had been acquitted.

This issue was initiated by the state's filing a notice of intent to rely on other crimes or wrongs or acts, specifically stating its intention to introduce as evidence that "the same firearm was used to kill Walter H. Coney ... and Omar Rivero." At trial, the state announced its intention to call a witness to the Coney shooting who would testify about the events surrounding the incident, including his observation that Amoros was holding the gun immediately following the fatal shot. Amoros' counsel objected to the introduction of any testimony broader than that necessary "to link the gun up with this defendant" and requested the state be limited to asking the witness if he saw Amoros "with the gun in his hand on the day in question." The state responded that it was necessary to demonstrate that Coney was shot and the bullet removed from him in order for the bullet comparison to be effective. ² The court granted the defense request for a modified Williams rule instruction to the jury to consider the evidence "for the limited purpose of proving identity on the part of the defendant."

Amoros contends our holdings in State v. Perkins, 349 So.2d 161 (Fla.1977), and Jackson v. State, 498 So.2d 406 (Fla.1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987), mandate a finding of reversible error.

The evidentiary rule governing admissibility of similar fact evidence of another criminal offense was set forth by this Court in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and subsequent cases, and codified into section 90.404(2)(a) of the Florida Evidence Code. ³ The Perkins case concerned a defendant who was being tried for attempted rape of a minor. Testimony established that Perkins had been previously acquitted of the charge of sexually assaulting another minor. We found admission of this similar fact evidence fundamentally unfair. In Jackson, we approved the introduction of evidence showing the defendant had possession of a gun immediately subsequent to the offense for which he was being tried. The evidence revealed that the defendant and the cab driver had struggled for the gun. Evidence that the defendant had picked up the gun and fired it into the back window of the car was deemed inadmissible by the trial judge because it was not necessary to show the defendant's possession of the gun.

In the instant case, the use of the gun in the prior incident was the only evidence the state had to link Amoros to the killing of Rivero. Amoros agrees the evidence of his prior possession of the gun was an essential and relevant part of the state's case. Since the crime laboratory analysis showed the gun fired the bullets that killed Rivero and Coney, and because no other substantial evidence linked Amoros to the gun in the Rivero shooting, this evidence linking him to the gun at an earlier time was clearly relevant. It was essential for the state to demonstrate Amoros' possession of the gun on a prior occasion, but as important was the necessity of showing this gun fired the bullet that killed Walter Coney. Without showing where the bullet in Coney came from, there is no basis to link the gun to the shooting of Rivero. The testing concerning the comparison of the bullets was meaningless without an explanation of where the Coney bullet originated. We reject the assertion that Perkins controls or that Jackson limits admission of the evidence in this instance. Instead, we find that evidence of the possession of the gun and its firing on a prior occasion was clearly admissible to link Amoros to the murder weapon. "In order for evidence to be relevant, it must have a logical tendency to prove or disprove a fact which is of consequence to the outcome of the action." C. Ehrhardt, Florida Evidence § 401.1 (2d ed. 1984). The facts that Amoros was seen in possession of a gun on a prior occasion and that the bullet fired from that gun on the previous occasion identified it as the same weapon used to kill the victim in the instant offense rendered the evidence relevant whether the circumstances constituted a crime or not. Simply allowing testimony that Amoros had possession of a gun does not serve to identify it as...