Conde v. State

Decision Date04 September 2003
Docket NumberNo. SC00-789.,SC00-789.
Citation860 So.2d 930
PartiesRory Enrique CONDE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh, P.A., Specially Appointed Public Defender, Miami, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Debra Rescigno, Assistant Attorney General, West Palm Beach, FL, for Appellee.


Rory Enrique Conde appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm both the conviction and death sentence.


On January 13, 1995, Conde picked up Rhonda Dunn, a prostitute, and took her to his apartment. After twice engaging in sexual relations, Dunn lay on the bed with Conde for approximately five minutes and then got up to enter the bathroom. Conde followed her from behind and began to manually strangle her. A struggle ensued, in which Dunn suffered numerous defensive wounds and fell to the floor with Conde on top, continuing to strangle her. Dunn eventually died from asphyxiation. Conde then disposed of her body by driving it to another location and leaving it on the side of the road.

This sequence of events had occurred on five prior dates. On each occasion, Conde picked up a prostitute, they engaged in sexual relations at his apartment, and Conde then strangled the victim to death, later depositing the body along the side of a road.1 This series of murders occurred over the course of six months and was preceded by the break-up of Conde's marriage, which occurred when his wife discovered that Conde was using the services of prostitutes. Conde later confessed to all six murders and stated that after each murder, he knelt over the deceased body and verbally blamed the victim for his marital problems.

Conde was arrested in June of 1995, after fire rescue personnel discovered a woman, naked and bound in duct tape, trapped in his apartment. During the investigation of that crime, evidence was discovered in Conde's apartment that linked him to the series of murders. Upon his arrest, Conde was read his Miranda rights, consented to searches of his apartment and automobile, and consented to the taking of saliva and blood samples. He was interrogated over the course of the afternoon and evening of his arrest date but did not admit to the crimes. The next day, he was allowed to telephone his family, after which he confessed to each murder. He was charged by a six-count indictment with the first-degree murder of all six victims. The counts were severed, and his first trial, held in October 1999, was for Dunn's murder. The trial court permitted the State to introduce Williams2 rule evidence of the other five murders. On the basis of DNA, fiber, tire, and shoe evidence, together with medical testimony and Conde's confession, the jury found Conde guilty of first-degree murder.

In the penalty phase, the State alleged the existence of three aggravators: (1) Conde was previously convicted of a felony involving the use or threat of violence; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). Conde proffered the following statutory mitigating circumstances: (1) he had no significant history of prior criminal conduct; (2) the murder was committed while under the influence of extreme mental or emotional disturbance; and (3) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. He presented three mental health experts. Conde also presented evidence of nonstatutory mitigation, primarily relating to his marital difficulties and family background, including physical, emotional, and sexual abuse, through the testimony of several family members and friends.

The jury recommended the death penalty by a nine-to-three vote. Following a Spencer hearing,3 the trial court imposed a sentence of death, finding the three requested statutory aggravating circumstances (HAC, CCP, and prior violent felony), one statutory mitigating circumstance (no significant history of prior criminal activity, given moderate weight), and five nonstatutory mitigating circumstances (positive influence on family despite adversity, given moderate weight; good employment background, given moderate weight; relationship with his children, given moderate weight; mental and emotional problems, given little weight; and status as model inmate, given little weight). This appeal followed.

Conde now raises thirteen issues in his direct appeal to this Court, seven involving the guilt phase4 and six involving the penalty phase.5 However, because many of those issues consist of distinct subissues, we address here a total of seventeen claims, beginning with the guilt phase.

Denial of Cause Challenges to Prospective Jurors

In his first claim, Conde asserts that the trial court erred in denying cause challenges to six prospective jurors, thus forcing him to use peremptory challenges to strike five of those six and to forgo using the same peremptory challenges to strike the sixth and others who served on the jury. He alleges that voir dire questioning revealed significant doubt as to the ability of each challenged juror to set aside any bias regarding the death penalty and impartially render a penalty-phase recommendation. In response, the State asserts that each challenged prospective juror demonstrated impartiality and the ability to render a recommendation based upon the evidence presented.

A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror competency. Barnhill v. State, 834 So.2d 836, 844 (Fla.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003). This is because trial courts have a unique vantage point in their observation of jurors' voir dire responses. Therefore, this Court gives deference to a trial court's determination of a prospective juror's qualifications and will not overturn that determination absent manifest error. Hertz v. State, 803 So.2d 629, 638 (Fla. 2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 846 (2002). Where a prospective juror is challenged for cause on the basis of his or her views on capital punishment, the standard that a trial court must apply in determining juror competency is whether those views would prevent or substantially impair the performance of a juror's duties in accordance with the court's instructions and the juror's oath. Id. (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). "In a death penalty case, a juror is only unqualified based on his or her views on capital punishment, if he or she expresses an unyielding conviction and rigidity toward the death penalty." Barnhill, 834 So.2d at 844.

The first challenged venireman we address here is prospective juror Groom. During voir dire questioning, Groom initially stated that he felt the death penalty should be mandatory in some circumstances, but upon further questioning, he stated that he could follow the court's instructions to weigh aggravating and mitigating circumstances in deciding what sentence to recommend. Groom's answers as a whole do not present an unyielding conviction and rigidity toward the death penalty. Rather, his answers indicate that he felt his penaltyphase recommendation would depend upon the facts presented to him and the court's instructions. Where, as here, a prospective juror initially states that one who murders should be executed but later states that he can follow the law upon court instruction, the trial court does not abuse its discretion in denying a cause challenge. Barnhill, 834 So.2d at 845. We therefore do not find manifest error with regard to this juror.6

The second challenged prospective juror, Loida Hernandez, was repeatedly questioned by defense counsel as to whether she would automatically recommend the death penalty if Conde were found guilty. To each question, Hernandez answered consistently that she would need to evaluate the evidence as presented. It is therefore clear that Hernandez's answers did not present an unyielding conviction and rigidity toward the death penalty but, rather, suggested that she would go into both phases of trial with an open mind.

The third challenged venireman was prospective juror Huey, who responded appropriately to initial questioning by the trial judge and prosecutor about his ability to wait until the second phase of trial and listen to evidence of aggravating and mitigating circumstances before reaching his final recommendation. Thereafter, the following defense inquiry took place:

[Defense Counsel]: You put down on your questionnaire that you believe regarding the death penalty ... that murderers give up their right to live.... Explain what you mean by that.
[Huey]: Well, anyone that would be found guilty of taking someone else's life I think gives up their right to live. I believe an eye for an eye.
[Defense Counsel]: Now, let's assume... you come to believe beyond any reasonable doubt that Mr. Conde is guilty of having killed Rhonda Dunn ... with premeditation, which is first degree murder. In your mind, would that mean that he should receive the death penalty?
[Huey]: ... I believe that I can decide based on the aggravating or mitigating circumstances whether life imprisonment or the death penalty should be the appropriate choice.
[Defense Counsel]: Now, the Court read a statement to the jurors in which he said that Mr. Conde was arrested for the homicide of six people.... Would you believe that once you hear that information that your belief regarding the forfeiture of a life would be even stronger?
[Huey]: I would certainly

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