Caballero v. State, SC01-651.

• Citation: 851 So.2d 655
• Decision Date: 10 July 2003
• Docket Number: No. SC01-651.,SC01-651.
• Parties: Luis CABALLERO, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

851 So.2d 655

Luis CABALLERO, Appellant, v. STATE of Florida, Appellee.

No. SC01-651.

Supreme Court of Florida.

July 10, 2003.

Lewis A. Fishman, Plantation, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Melanie Ann Dale, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

Luis Caballero appeals his convictions of first-degree murder, kidnapping, robbery, and burglary, and his respective sentences, including the sentence of death imposed for the crime of murder. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution. For the following reasons, we affirm Caballero's convictions and sentences.

FACTS

On July 15, 1995, the body of Denise Rose O'Neill was found dumped in a canal near the Sawgrass Expressway in Broward County. Her body was covered by a sheet and was bound with black shoelaces, a multicolored dog leash, and electrical cords at the ends of which were heating devices of the type used to warm reptiles. Her clothing had been cut along the right side of the crotch area.

Police canvassed Denise O'Neill's apartment complex, looking for neighbors with reptiles and dogs as pets, since a dog leash and cords with heating devices had been found on the victim's body. Investigators learned that Luis Caballero lived next door to O'Neill and owned snakes and a dog. When Caballero arrived home, he agreed to accompany detectives to the police station.

At the police station, following Miranda¹ warnings, Caballero confessed to O'Neill's murder. In a taped statement, Caballero gave the following account. He said that a friend, Isaac Brown, had recently moved into Caballero's apartment. On the night before the murder, Brown told Caballero that he intended to rob O'Neill. Although Caballero was initially uncomfortable with the idea, he agreed to serve as lookout.

On the day of the crime, Caballero saw O'Neill carrying a laundry basket up the stairs. As she reached her door, Brown grabbed her, pushed her inside Caballero's apartment, and shoved her to the floor. O'Neill struggled, but Brown and Caballero restrained her, using items from her laundry basket: they tied her legs and hands with towels and used a sock to gag her. Caballero told O'Neill that nothing would happen to her if she did what Brown said. She cooperated, giving the two men information regarding her credit cards and bank account.

Caballero left in O'Neill's car and withdrew money from her accounts. When he returned to the apartment, Brown told Caballero that while he was out, O'Neill had fought to free herself. Brown had tied her more securely with electrical cords, a multicolored dog leash, and a pillow case. Caballero and Brown told O'Neill that they would drop her off somewhere after dark. Although Caballero said that he hoped this was true, he was concerned because O'Neill was his next-door neighbor and could turn him in if she was released.

Caballero and Brown left O'Neill tied and went to the kitchen to make plans. They talked about killing her, but each wanted the other to do the killing. Finally, Brown said he would kill O'Neill if Caballero gave him more of O'Neill's money. Caballero agreed. The two men returned to the bedroom and committed the murder.

Although Caballero initially denied participating in the killing, he ultimately admitted that he helped Brown kill O'Neill. In a second recorded confession, Caballero said that Brown tried to strangle O'Neill with an electrical cord, but O'Neill struggled and yelled, and the cord snapped. Brown used another cord, and Caballero covered O'Neill's mouth to muffle her screams while he pulled her head and Brown pulled the cord. O'Neill died after ten to twelve minutes. After O'Neill was dead, Caballero cut the crotch of her clothing and had sex with her, ejaculating inside.

Later that night, Caballero and Brown wrapped O'Neill's body in a sheet from Caballero's bed and tied the sheet with black shoelaces and electrical cords. They loaded her body into the trunk of her car at around 5 a.m. and dumped her body in a canal near the Sawgrass Expressway. Caballero and Brown then used the victim's credit cards to withdraw more money. While eating breakfast, they split the money.

At trial, the State introduced Caballero's taped confessions along with evidence that Caballero's fingerprints were found inside O'Neill's car, and evidence that his DNA matched the semen on vaginal swabs gathered during the autopsy. After the State rested, the defense chose not to testify or present evidence. The jury found Caballero guilty of first-degree murder, kidnapping, robbery, and burglary.

During the penalty phase, several witnesses testified on Caballero's behalf, but he did not take the stand. The character witnesses testified that Caballero was nonaggressive and a follower, and that he had attended special educational classes due to learning disabilities. While in prison awaiting trial, Caballero completed a course in anger management and in parenting. Caballero also presented the testimony of a licensed psychologist who had administered several tests to Caballero, including the Minnesota Multiphasic Personality Inventory 2 (MMPI-2). The psychologist was unable to interpret the results of the MMPI-2 because Caballero's answers to the test were consistent with an overreporting of problems, possibly in an effort to exaggerate complaints. Other test results indicated that Caballero's IQ was below average (twelfth percentile).

The jury recommended death by a vote of eight to four. The trial court found that four separate aggravators² were proven and found that each of the aggravating circumstances, standing alone, would be sufficient to outweigh the six mitigating circumstances.³ Accordingly, the judge sentenced Caballero to death.

ANALYSIS

Caballero raises seven issues in this appeal.⁴ For the following reasons, we conclude that he is entitled to no relief.

I. Right to Remain Silent

In his first claim, Caballero asserts that the prosecutor impermissibly commented during closing arguments on Caballero's exercising his right to remain silent. During closing arguments, defense counsel had argued that Caballero did not want to kill O'Neill. The prosecutor's closing statement rebutted this argument, saying, "You can tell ... what a man intends by what he does not by what he desires. What does he do? According to the [defendant's] statement, uncontradicted, what does he do?" Caballero objected to the prosecutor's reference to the evidence as uncontradicted, contending this shifted the burden of proof to Caballero. The trial court overruled Caballero's objection to the prosecutor's statement and denied Caballero's motion for a mistrial.

Caballero argues that the prosecutor's statement was an impermissible comment on his right to remain silent, and that the prosecutor's statement improperly shifted the burden of proof to the defense. We disagree. A defendant has the constitutional right to decline to testify against himself in a criminal proceeding; therefore, "any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant's failure to testify is error and is strongly discouraged." Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000) (quoting State v. Marshall, 476 So.2d 150, 153 (Fla.1985)). However, it is permissible for the State to emphasize uncontradicted evidence for the narrow purpose of rebutting a defense argument since the defense has invited the response. See id. at 38-39 (citing Barwick v. State, 660 So.2d 685, 694 (Fla.1995); Dufour v. State, 495 So.2d 154, 160 (Fla.1986)). Here, the State emphasized the evidence of Caballero's actions for the purpose of countering the defense argument that Caballero did not want to kill O'Neill. The defense's argument invited the State's response. In this context, the prosecutor's statement directed the jury's attention to the evidence of Caballero's actions in contrast to his professed desire, rather than to Caballero's failure to testify.

Further, even if one were to interpret the prosecutor's statement as a comment on the defendant's failure to testify, Caballero would not be entitled to relief. Erroneous comments require reversal only where there is a reasonable possibility that the error affected the verdict. Rodriguez, 753 So.2d at 39. In this case, Caballero's voluntary, detailed confession to the crime was substantiated by physical evidence, including fingerprint and DNA evidence. Based on this evidence supporting the verdict, the asserted error was harmless beyond a reasonable doubt. Caballero is not entitled to relief on this claim.

II. Aggravating Circumstances

Next, Caballero claims that the trial court erred in concluding that the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification (CCP). To establish the CCP aggravator, the evidence must show that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.

Jackson v. State, 648 So.2d 85, 89 (Fla. 1994) (citations omitted).

In reviewing this claim, we do not second-guess the trial court's factual findings; instead, we limit our review to ensuring that the trial court applied the correct rule of law and, if so, that there is competent, substantial evidence to support its findings. See Willacy v. State, 696 So.2d 693, 695 (Fla.1997)

. The trial court based its finding of CCP on the fact that Caballero and Brown discussed and planned the murder before the fatal incident began, and that Caballero had an extended period of time in which to reflect upon the actions in which he was going to...