Colina v. State, 79479

• Decision Date: 07 April 1994
• Docket Number: No. 79479,79479
• Citation: 634 So.2d 1077
• Parties: 19 Fla. L. Weekly S176 Manuel COLINA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1077

634 So.2d 1077

19 Fla. L. Weekly S176

Manuel COLINA, Appellant, v. STATE of Florida, Appellee.

No. 79479.

Supreme Court of Florida.

April 7, 1994.

Kevin R. Monahan, Palatka, for appellant.

Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Manuel Colina appeals his sentence of death imposed upon resentencing. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const. For the reasons expressed, we affirm the trial court's reimposition of the death penalty.

Colina was found guilty of the bludgeoning murders of Cecilia and Angel Diaz and sentenced to death on both counts. In Colina v. State, 570 So.2d 929 (Fla.1990), this Court affirmed the convictions but remanded the case for resentencing due to the trial court's consideration of Colina's lack of remorse as an aggravating factor. The facts of this case were thoroughly articulated in that opinion. Pertinent to this appeal, we stated:

At trial, [Felix] Castro testified that, after he and Colina smoked some cocaine, they went to the Diazes' residence to collect money they owed him for work he had performed; that, upon arriving at the residence, Colina asked Mr. Diaz for a jack to change a tire; that Mr. Diaz came outside and spoke with Castro while Colina was inside the residence; that Castro battered Mr. Diaz in the back of the head and then Colina, who had come back outside, hit Mr. Diaz with a tire iron; that the two men then carried Mr. Diaz behind the residence, where Mrs. Diaz was lying; that, at Colina's direction, Castro cut up a clothesline so Colina could tie up the victims; and that Colina then struck each victim several times. Castro further testified that, before departing from the premises, he and Colina stole various items, including cash, jewelry, alcohol, and the Diazes' automobile; that they used the cash to purchase alcohol and Colina sold the jewelry to purchase cocaine, which the two men smoked; and that Castro drove back to the victim's residence and stole a television, which he used to acquire more cocaine. Castro also testified that he and Colina committed two more burglaries before departing for Houston, Texas, where they were eventually arrested.

Id. at 930. As previously noted, this Court affirmed Colina's convictions for both murders but remanded for resentencing due to the trial court's consideration of Colina's lack of remorse for the killings as a nonstatutory aggravating factor. Id. at 932-33.

Prior to the resentencing hearing, the State filed a motion to declare Colina's codefendant, Felix Castro, unavailable to testify at the resentencing hearing because Castro had filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which was pending. Castro had pleaded guilty to the first-degree murder of the Diazes prior to the original trial and had been sentenced to life imprisonment without the possibility of parole for twenty-five years for each count, with the sentences to run consecutively. Castro was the principal witness against Colina at the original trial, during which Castro placed the responsibility for the murders on Colina.

At the first resentencing proceeding, the State sought to call Castro as its first witness. Relying on the advice of his postconviction counsel, Castro refused to testify on Fifth Amendment grounds because his rule 3.850 motion for postconviction relief was still pending. The State then moved to declare the witness unavailable and the defendant moved for a mistrial. The trial court granted the defense's motion and declared a mistrial.

Subsequently, but before the commencement of the second resentencing proceeding, the State filed a motion for reconsideration of the earlier ruling refusing to find Castro unavailable. The trial judge deferred ruling. At the second resentencing proceeding, Castro was again called and again refused to testify. The trial judge at this time ruled that Castro was unavailable and allowed Castro's testimony from the original trial to be read into the record. The trial judge also found Castro to be in contempt for failure to testify.

The State presented (1) medical testimony that both Cecilia Diaz and Angel Diaz received multiple blows to the head from a tire iron and that both victims died from the loss of blood resulting from the wounds inflicted to their heads; (2) Colina's prior accounts of the murders, which reflected that the majority of the acts were committed by Castro; and (3) testimony of a jail inmate who testified that, while in jail with Colina, he and Colina had a fight and that Colina stated that he had already killed two people and that one more would not make any difference. Colina presented testimony that established that Castro went back into the house after the murders had been committed and took a television set. The testimony also reflected that Castro knew the Diazes and referred to them as "Momma" and "Poppa." The jury, by a vote of seven to five, recommended that the judge impose the death penalty.

In sentencing Colina to death for the murder of Cecilia Diaz, the trial judge found two aggravating circumstances, specifically:

1. F.S. 921.141(5)(f) The capital felony was committed for pecuniary gain. The evidence is undisputed that this offense was carefully planned and the intent was to obtain money or items of value by the Defendant. After the murder of Cecilia Diaz, the Defendant and Co-Defendant ransacked the home looking for valuables and money.

2. F.S. 921.141(5)(h) The capital felony was especially heinous, atrocious or cruel. The Defendant carefully planned the murder of Cecilia Diaz and Angel Diaz. He chose as his weapon of destruction, a tire iron. Medical evidence showed that with repeated and violent blows to the facial area and head, life was beaten out of Cecilia Diaz. Evidence indicates an apprehension of death as she was beaten first in the home, then dragged over one hundred yards behind the house, to be beaten again. Medical testimony was that Cecilia Diaz could have survived the bashing of her face, but not of her skull. The Co-Defendant's testimony indicates she moaned and struggled, thereby causing the Defendant to continue his tortuous bashing, until her skull was in pieces, to assure her death.

In sentencing Colina to death for the murder of Angel Diaz, the trial judge found three aggravating factors:

1. F.S. 921.141(5)(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. The Defendant's prior conviction for the murder of Cecilia Diaz established beyond a reasonable doubt the existence of this aggravator.

2. F.S. 921.141(5)(d) The capital felony was committed while the defendant and his codefendant were engaged in the commission of or an attempt to commit robbery. The Defendant and Co-Defendant unlawfully took from the person of Angel Diaz his wallet and its contents after hitting him over the head with the tire iron as they were dragging him into the woods. Once into the woods, the Defendant continued to bash in Mr. Diaz's skull to assure his demise. Undisputed evidence at the resentencing hearing from the former trial testimony of the Co-Defendant was that one of the primary motives for killing both Cecilia and Angel Diaz was that both could identify the Defendant, MANUEL COLINA, as the lead participant in the criminal acts, but they did not know the Co-Defendant. The Co-Defendant testified that the reason the Defendant said "he had to" kill them was because "they know me" and therefore, the murder was a factor in the Defendant's flight after commission of the felony.

3) F.S. 921.141(5)(h) The capital felony was especially heinous, atrocious or cruel. The facts adduced at trial established conclusively that Angel Diaz was struck first by this Defendant's co-participant, Felix Castro, in the back of the head with a tree limb and was there upon knocked to the ground. Thereafter, the deceased, Angel Diaz, was come upon by Manuel Colina who had armed himself with a tire iron. When the deceased, Angel Diaz, attempted to rise from the ground from having been knocked down, he was struck at least twice more then and there by Manual Colina with the tire iron. The testimony of Dr. William Maples established that one of the bony defects in the back of Angel Diaz's skull was consistent with the unique tooling of the tire iron. There is record evidence that Manuel Colina inflicted great pain on Angel Diaz during the course of the first degree murder.

The fashion in which Angel Diaz was murdered is evidence upon which the record supports a finding of this capital felony having been committed in an especially heinous, atrocious or cruel manner.

The murder of Angel Diaz occurred relatively contemporaneous with the murder of Cecilia Diaz by the hand of the defendant, Manuel Colina. The evidence adduced at trial described one or the other of the victims moaning at points in time before the final blows were leveled upon their heads by the Defendant while in the presence of each other as they lay dying in the back section of their property. They were found lying in relative proximity to one another and were nude or semi-nude when recovered, and tied about the hands and feet. Medical evidence concluded that the victims had already literally bled to death before they were tied by the...