Colina v. State, 71124

Decision Date15 November 1990
Docket NumberNo. 71124,71124
Citation570 So.2d 929
Parties15 Fla. L. Weekly S600 Manuel A. COLINA, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Kevin R. Monahan and Jeffrey W. Monroe, Palatka, for appellant.

Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Manuel A. Colina appeals his convictions on two counts of first-degree murder and sentences of death on both counts. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Colina's convictions but find, for the reasons discussed below, that a new sentencing proceeding before a new jury is required.

This was the beating-murder of an elderly couple, Cecilia and Angel Diaz, in their residence. Colina and Felix Castro were charged with first-degree murder. Castro pleaded guilty, received two life sentences, and testified against Colina. At trial, 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 victims' 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.

Colina's testimony substantially differed from Castro's concerning the extent of Colina's participation. He testified that he fled the scene after seeing Castro hit Mr. Diaz numerous times; that he did not see Castro again until later that night when Castro pulled up beside him driving the Diazes' automobile; that Castro got out of the automobile holding a bottle of rum and a knife; that he placed the knife against Colina's throat and asked Colina to get into the automobile; and that they then returned to the victims' home, where Castro stole some goods prior to their departure for Texas.

The prosecution also presented the testimony of a number of inmates at the Putnam County jail that Colina admitted to them, while he was in jail, that he killed the two victims.

The jury convicted Colina on two counts of first-degree murder and recommended that the trial judge impose the death sentence on both counts. The trial judge followed the jury's recommendation after finding no mitigating factors and the following four aggravating factors: the murders were committed while Colina was engaged in the commission of a robbery; the murders were committed for the purpose of avoiding or preventing a lawful arrest; the murders were especially heinous, atrocious, or cruel; and the murders were committed in a cold, calculated, and premeditated manner.

In this appeal, Colina raises the following seven issues: (1) whether Colina's convictions and sentences were fundamentally tainted by evidence and arguments calculated to arouse ethnic prejudice during both phases of the trial; (2) whether the trial court erred in permitting the state to present evidence of collateral offenses and uncharged misconduct; (3) whether the trial court erred in excluding all of Castro's statements offered by the defense; (4) whether the trial court erred in allowing the state to present evidence of nonstatutory aggravating circumstances during the penalty phase of the trial; (5) whether the trial court erred in finding that the murders were especially heinous, atrocious, or cruel; (6) whether the trial court erred in finding that the murders were committed in a cold, calculated, and premeditated manner; and (7) whether the trial court erred in finding that the murders were committed for the purpose of avoiding or preventing a lawful arrest.

We find that claims (1) and (2) are without merit and do not require discussion; that claims (3) and (4) have merit and require a new sentencing proceeding; and that claims (5), (6), and (7) need no discussion in light of our findings in claims (3) and (4).

Colina argues that the trial court erred in prohibiting him from testifying about Castro's statements made during the incident. At one point, Colina's counsel attempted to demonstrate through Colina's testimony that Castro knew the victims. In this regard, the following occurred:

[DEFENSE COUNSEL]: Mr. Colina, do you know whether or not Felix Castro knew Mr. and Mrs. Diaz?

[INTERPRETER]: Perfectly.

[DEFENSE COUNSEL]: Did he ever say anything about Mr. and Mrs.--

[PROSECUTOR]: Objection, hearsay, calls for hearsay.

THE COURT: Arguments?

[DEFENSE COUNSEL]: Your Honor, the person about whom this statement is attributable has been a witness in this cause, and this is an exception to the hearsay rule.

[PROSECUTOR]: No way. I object. There's not--this has not been placed in issue, wasn't asked of that witness, and, therefore, it's not even impeachment, it's hearsay.

THE COURT: I believe so. Sustained.

The following exchanges also transpired during Colina's direct examination:

[DEFENSE COUNSEL]: If you would, whenever the car pulled up, would you tell us what happened then.

[INTERPRETER]: He says when he saw the car park, he could see, like, perfectly how Felix Castro walk out of the car, and he had a bottle of rum in his hand, his left hand, and a knife in his right hand.

[DEFENSE COUNSEL]: Okay, what happened?

[INTERPRETER]: He put the bottle of rum on top of the car. And he grabbed him by the shirt and put the knife in his neck. He told him that he was the only witness.

[PROSECUTOR]: Objection, hearsay.

THE COURT: Mr. Butler.

[DEFENSE COUNSEL]: Your Honor, again, the witness has been here, he has testified, and we would suggest that there is an exception to the hearsay rule in regard to this testimony.

[PROSECUTOR]: Not one in law, Your Honor. State objects.

THE COURT: No, sir, not one that I can remember from the Evidence Code. Sustained.

....

[DEFENSE COUNSEL]: Would you tell us what happened when the car pulled up behind the house.

[INTERPRETER]: When the black boy parked the car behind the house, Felix Castro told him, the black boy--

[PROSECUTOR]: Objection. Anything he said, that's hearsay.

THE COURT: The objection is--

....

[DEFENSE COUNSEL]: Manuel, you know, tell us what happened, not so much what was...

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8 cases
  • Melton v. State, SC04-1689.
    • United States
    • Florida Supreme Court
    • November 30, 2006
    ...that his lack of remorse cannot be considered in his capital sentencing: Shellito v. State, 701 So.2d 837 (Fla.1997); Colina v. State, 570 So.2d 929 (Fla.1990); Trawick v. State, 473 So.2d 1235 (Fla. 1985); and Pope v. State, 441 So.2d 1073 (Fla.1983). Melton is correct that these cases sta......
  • Ramroop v. State
    • United States
    • Florida District Court of Appeals
    • September 4, 2015
  • Foster v. State
    • United States
    • Florida Supreme Court
    • September 7, 2000
    ...Escobar v. State, 699 So.2d 988, 997 (Fla.1997); Chatman v. State, 687 So.2d 860, 862 (Fla. 1st DCA 1997); knowledge, see Colina v. State, 570 So.2d 929, 932 (Fla.1990); Duncan v. State, 616 So.2d 140, 141 (Fla. 1st DCA 1993); or identity, see State v. Freber, 366 So.2d 426, 427 (Fla.1978).......
  • Shellito v. State
    • United States
    • Florida Supreme Court
    • September 11, 1997
    ...stated that lack of remorse is a nonstatutory aggravating circumstance and cannot be considered in a capital sentencing. Colina v. State, 570 So.2d 929 (Fla.1990); Trawick v. State, 473 So.2d 1235, 1240 (Fla.1985); Pope v. State, 441 So.2d 1073, 1078 (Fla.1983). However, on this record, we ......
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