Castillo v. State

• Decision Date: 26 April 2017
• Docket Number: No. 3D15–1868,3D15–1868
• Citation: 217 So.3d 1110
• Parties: Eduardo CASTILLO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

217 So.3d 1110

Eduardo CASTILLO, Appellant,

v.The STATE of Florida, Appellee.

No. 3D15–1868

District Court of Appeal of Florida, Third District.

Opinion filed April 26, 2017

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before SUAREZ, C.J., and LAGOA and SCALES, JJ.

LAGOA, J.

Eduardo Castillo ("Castillo") appeals from his conviction and sentence for second degree murder with a deadly weapon. On appeal, Castillo raises two arguments. First, Castillo argues that the trial court erred in overruling defense counsel's objection to comments made by the State in closing argument. Second, Castillo argues that the trial court improperly reclassified his second degree murder conviction from a felony of the first degree to a life felony pursuant to section 775.087(1)(a), Florida Statutes (2015).

With regard to the first argument, we find that the error was harmless, and affirm Castillo's conviction for second degree murder without further discussion. With regard to the second argument, we agree that the State failed to introduce any substantive evidence that Castillo had actual possession of a deadly weapon. We therefore conclude that the reclassification of Castillo's conviction to a life felony constitutes fundamental error and remand to the trial court for resentencing without reclassification under section 775.087(1)(a).

I. FACTUAL AND PROCEDURAL HISTORY

The State charged Castillo and his co-defendants by information with the second degree murder of Luis Rodriguez ("Rodriguez") in violation of section 782.04(2), Florida Statutes (2015). The information alleged that Rodriguez was killed by "BEATING AND/OR STRIKING HIM REPEATEDLY" and that "during the course of committing said offense, [Castillo] carried, used, or threatened to use a deadly weapon, to wit: A BAT AND/OR A STICK AND/OR A ROCK."

At trial, the State presented the testimony of several witnesses who either witnessed or were involved in the attack. Joel Forcelledo ("Forcelledo") testified that on the night of January 7, 2010, he was working as a security guard at a nursing home when he heard screaming in a nearby parking lot. Forcelledo saw several individuals chasing one male who was running and fell down. When the victim fell, he was beaten with a bat but Forcelledo could not identify any of the attackers. Forcelledo called 911 and then rushed to aid the victim.

T.L.¹ testified that on the night in question she witnessed Rodriguez running from a group of at least ten boys that were members of the Bout That Life ("BTL") gang.² At trial, T.L. identified "Teddy," "Baby," and "Young Money," but she did not identify Castillo. T.L. saw "Teddy" slam Rodriguez to the floor and also saw "Baby" throw a rock at the victim. She further testified that the entire group of boys participated in hitting and kicking Rodriguez. When T.L.'s father screamed that the police were coming, the group dispersed, and T.L. went to the aid of Rodriguez.

The State presented the testimony of two other witnesses who identified Castillo as participating in the attack on Rodriguez. Specifically, Daniel Salas ("Salas")³ testified that on the night of January 7, 2010, he, Castillo, and others beat Rodriguez, and that during the beating, Castillo "grabbed [Rodriguez] by the shirt and started punching him in the face." Salas did not testify that Castillo used a stick or other weapon.

Rodriguez's friend, Mauricio Ordonez ("Ordonez"),⁴ also testified at trial. Ordonez testified that on the night of January 7, he and Rodriguez were at Riverside Elementary School when they heard the name of the gang, BTL, being screamed behind them.⁵ A group of people, including Castillo, began to chase him and Rodriguez, so they ran. At trial, Ordonez identified "Baby," "Castillo,"⁶ "Teddy," "Alex," and "Young Money" as part of the group that chased him on the night of January 7. On direct examination, Ordonez testified that he did not see any part of the beating because he became separated from Rodriguez while they were running and he hid in a building. The State then elicited testimony from Ordonez concerning a prior inconsistent statement—specifically, that on January 8, 2010, the day after the beating, Ordonez contacted the police and told them that he saw Rodriguez "get beat to death." Ordonez testified that his January 8 statement to the police was not true, that he had not seen any part of the beating, and that he lied to the police so that his friend "could get justice." During defense counsel's cross-examination of Ordonez concerning his January 8 statement to the police, the following exchange occurred:⁷

Q. Then you went on to say that you observed Tito, Tito Castillo, repeatedly hit the victim with a long stick , that was a lie too, wasn't it?

A. Yes.

Q. Now, I believe on direct examination that you testified that your reason for going into the police department and lying was that you wanted to seek justice for your friend?

A. Yes.

(Emphasis added).

The jury subsequently found Castillo guilty of second degree murder and checked a box on the verdict form finding that Castillo "carried, displayed, or used a deadly weapon." Based on the jury's finding, the trial court reclassified Castillo's conviction for second degree murder from a felony of the first degree⁸ to a life felony pursuant to section 775.087(1)(a).⁹ Castillo was sentenced to life, and this appeal ensued.

II. ANALYSIS

On appeal, Castillo argues that the State failed to prove that he used or had actual possession of a deadly weapon during the commission of the crime and, therefore, the trial court erred in reclassifying his second degree murder conviction from a felony of the first degree to a life felony pursuant to section 775.087(1)(a).¹⁰

Castillo concedes that the issue of the sufficiency of the evidence as to the allegation that he used or possessed a deadly weapon was not raised below as his counsel did not object to the verdict form or preserve the issue in any way. Because the issue was not preserved, the standard of review is fundamental error.

In Monroe v. State , 191 So.3d 395, 401 (Fla. 2016), the Florida Supreme Court, in addressing fundamental error, explained that "reviewing courts should proceed with caution when considering whether a fundamental error has occurred." The Supreme Court further explained, "[w]e have even more narrowly applied the fundamental error doctrine to alleged errors of insufficient evidence." Id. (emphasis added). Indeed, there are only two instances where an unpreserved challenge to the sufficiency of the evidence can be reviewed. Id. ; see also F.B. v. State , 852 So.2d 226, 230 (Fla. 2003) ("[W]e hold that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court."). The first exception concerns death penalty cases and is therefore not applicable here. See F.B. , 852 So.2d at 230. The second exception "occurs when the evidence is insufficient to show that a crime was committed at all." Id.

Thus, an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error-i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.

852 So.2d at 230–31 ; accord Monroe , 191 So.3d at 401 (stating that an unpreserved challenge to the sufficiency of the evidence can be reviewed "when there is insufficient evidence that a defendant committed any crime") (emphasis in original); see, e.g. , Troedel v. State , 462 So.2d 392, 399 (Fla. 1984) (finding that "a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error"); Stanton v. State , 746 So.2d 1229, 1230 (Fla. 3d DCA 1999) (same).

Here, the State argues that Castillo's conviction was properly reclassified based upon his actual possession of a stick, and that this conclusion is supported by Ordonez's acknowledgement during cross-examination of his prior inconsistent statement made to the police on January 8, the day after Rodriguez's murder. Specifically, the State relies upon Ordonez's response of "yes" to defense counsel's question: "Then you went on to say that you observed Tito, Tito Castillo, repeatedly hit the victim with a long stick, that was a lie too, wasn't it?" The State argues that the jury did not find Ordonez's testimony that he lied to the police to be credible, that they "apparently believed his original statement," and that this constitutes substantive evidence that Castillo was in possession of a stick during the attack.

Under section 90.801(2)(a), Florida Statutes (2015), prior inconsistent statements can be admitted as substantive evidence "if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla. Stat. (2015). The law is well-established that "a statement given under oath during a police investigation is not a statement given at an ‘other proceeding’ and consequently is not admissible as substantive evidence under section 90.801(2)(a)." Pearce v. State , 880 So.2d 561, 569 (Fla. 2004) (citing State v. Delgado–Santos , 497 So.2d 1199 (Fla. 1986) ); see also S.L. v. State , 993 So.2d 1108, 1110 (Fla. 4th DCA 2008) (holding that police officer's testimony as to the victim's prior inconsistent statements made to him on day of the alleged crime were not admissible as substantive evidence and could not be used to support a finding of guilt). Here, Ordonez's prior inconsistent statement to police was not given at a trial, hearing, or other proceeding or in a deposition....