Delgado v. State

• Decision Date: 24 August 2000
• Docket Number: No. SC88638.,SC88638.
• Citation: 776 So.2d 233
• Parties: Jesus DELGADO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

776 So.2d 233

Jesus DELGADO, Appellant, v. STATE of Florida, Appellee.

No. SC88638.

Supreme Court of Florida.

August 24, 2000.

Roy D. Wasson, Miami, Florida, and Rev. Melodee A. Smith, Coral Gables, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Carolyn M. Snurkowski, Tallahassee, Florida, and Fariba N. Komeily, and Lisa Rodriguez, Miami, Florida, Assistant Attorneys General, for Appellee.

REVISED OPINION

PER CURIAM.

Jesus Delgado appeals his convictions on two counts of first-degree murder and the judgment of the trial court imposing a sentence of death on each count. In addition, appellant challenges his conviction of armed burglary. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed below, we remand for a new trial. The trial record establishes the following facts. Marlene McField was a neighbor of Tomas and Violetta Rodriguez, the victims in this case. In the early evening hours of August 30, 1990, Ms. McField witnessed the Rodriguezes arrive home. Later, at around 10 p.m., Ms. McField remembered hearing dogs in the home directly behind the Rodriguezes' home wailing in an unusual fashion.

The following morning, Ms. McField went to the Rodriguezes' home and noticed that the gate leading to the Rodriguezes' front porch was ajar; the key was still in the lock on the inside portion of the gate. Ms. McField removed the key from the gate and entered the front porch area. She then rang the doorbell, but no one answered. Knowing that the Rodriguezes were extremely security-conscious people, Ms. McField became suspicious and summoned the police.

When the police arrived, they discovered that the front door was unlocked. The first officer on the scene did not notice any sign of a forced entry. Inside, police secured the bedrooms and living room area first. Nothing in those areas indicated anything unusual. As the police moved toward the kitchen, they noticed a bloodstained knife and a pistol lying on the floor.

The kitchen, utility room, and garage did exhibit signs of a possible struggle. The utility room connects the kitchen and the garage. A wooden door leading from the utility room into the garage was cracked in the center and its hinges were broken. Mr. Rodriguez's body was discovered next to this door, just inside the garage. His body had bullet and stab wounds. Ms. Rodriguez's body was also discovered in the garage; it was wedged between a car and the garage wall. Her body had blunt force trauma and stab wounds.

In the kitchen, two cabinet drawers were open. The knife which police found was similar to a set found in one of the open kitchen drawers. A single set of bloody shoe-print impressions led from the garage into the kitchen and up to these drawers. Mr. Rodriguez was found without shoes and the soles of Ms. Rodriguez's slippers did not match the bloody impressions.

The pistol found next to the knife, a .22 caliber Ruger semiautomatic, was equipped with a silencer. Police could not trace the pistol because its serial number had been removed. Police did recover six.22 caliber shell casings that were later determined to have been fired from the Ruger. No other .22 caliber ammunition was found at the home. Police also found a .38 caliber revolver, which belonged to Mr. Rodriguez, in a zippered pouch inside a closed cabinet in the master bedroom. Testing on the revolver revealed it had not been fired. The State presented an expert who testified that tests performed on the victims' hands indicated that neither had triggered a firearm.

A single drop of only appellant's blood was found in the garage. A mixture of appellant's and the victims' blood was found in the garage, on the handgun, at the base of the kitchen phone that hung from a wall, and on the kitchen phone itself. Appellant's palm print was discovered on the kitchen phone. The police determined that the last call on this phone was made to Barbara Lamellas' home, where appellant resided at the time.

In addition to the physical evidence gathered from the scene, police learned that appellant and the Rodriguezes knew each other and had recently experienced difficulties as a result of a business transaction between the Rodriguezes and Horatio Lamellas. In June of 1990, the Rodriguezes sold their dry cleaning business to Horatio Lamellas. After the purchase, Barbara Lamellas, Horatio Lamellas' daughter, and appellant, Ms. Lamellas' boyfriend, ran the business.

Maria Hernandez worked at the dry cleaning business before and after the sale to Mr. Lamellas. Ms. Hernandez testified that after the sale she observed appellant complaining that the machines were not working properly and about dissatisfied customers. According to Ms. Hernandez, appellant stated that the Rodriguezes had "tricked him with the machines, and the business they had sold them." Ms. Hernandez stated that while the Rodriguezes were in charge, business was steady and the machines worked well.

Based on this information regarding the dry cleaning business and the evidence found at the home, appellant became a suspect. Appellant was not located and apprehended by police until December 23, 1992, more than two years after the murders.

On July 27, 1993, a grand jury indicted appellant on two counts of first-degree murder and one count of armed burglary. The petit jury found appellant guilty on all counts. After a penalty-phase proceeding, the same petit jury recommended by a seven-to-five vote that appellant be sentenced to death for the murder of Mr. Rodriguez and by a vote of twelve to zero that appellant be sentenced to death for the murder of Ms. Rodriguez. Regarding Mr. Rodriguez, the trial court found two aggravating circumstances: prior violent felony and murder committed during an enumerated felony (armed burglary). Regarding Ms. Rodriguez, the court found three aggravating circumstances: prior violent felony, murder committed during an enumerated felony (armed burglary), and heinous, atrocious, or cruel (HAC). The court found no statutory mitigation. The court found the following nonstatutory mitigation: Appellant suffered from serious life-long physical and psychological impairments (limited weight); appellant was a physically and emotionally battered child (substantial weight); appellant never used drugs (some weight); appellant's father was sentenced in 1989 to thirty years in federal prison for drug trafficking (some weight); appellant loves his family (moderate weight); appellant has had little contact with his mother since 1990 (little weight); appellant has the capacity to work hard and other fine qualities (some weight); and appellant's excellent behavior throughout trial (some weight). After weighing the relevant factors, the court sentenced appellant to death for each murder and to life for the armed burglary.

Appellant raises fourteen issues on appeal.¹ We find one issue dispositive in this case. Appellant claims that the trial court erred in denying his motion for judgment of acquittal on the charges of first-degree murder. Specifically, appellant argues that the State's theory of felony murder should not have been presented to the jury. We agree. After the State rested its case-in-chief, defense counsel moved the court for a judgment of acquittal on all counts of first-degree murder. Counsel argued that the State's theory of felony murder was flawed and therefore should not be presented to the jury and that the State had failed to introduce sufficient evidence of premeditation. The court denied the motion, allowing the State to argue both felony murder and premeditation in support of the first-degree murder charges.

The underlying felony that supported the State's case for felony murder was burglary. Regarding the burglary, the indictment stated that appellant entered or remained in the victims' dwelling with the intent to commit murder. The State prosecuted this case on the premise that appellant's entry into the victims' home was consensual (i.e., appellant was invited to enter the victims' home) but that at some point, this consent was withdrawn. Section 810.02(1), Florida Statutes (1989), states:

Burglary means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(Emphasis added.) This Court has construed the consent clause (beginning with "unless") to be an affirmative defense to burglary. See State v. Hicks, 421 So.2d 510 (Fla.1982)

. Thus, the burden is on the defendant to establish that there was consent. See id. The defendant can establish that: (1) the premises were open to the public, (2) the defendant was a licensee, or (3) the defendant was an invitee.

Recently, in Miller v. State, 733 So.2d 955, 957 (Fla.1999), this Court held "that if a defendant can establish that the premises were open to the public, then this is a complete defense." Consistent with our holding in Miller, if a defendant can establish either that the premises were open to the public or that the defendant was an invitee or licensee, then the defendant has a complete defense to the charge of burglary. After examining the origins of the crime of burglary, we find that this conclusion is necessary to fulfill the purpose for which the crime of burglary was intended.

At common law, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. See Model Penal Code, § 221.1 cmt. 1 at 61 (1980). The commentary to the Model Penal Code explains that the crime of burglary developed due to an effort to compensate for defects in the common law crime of attempt. See id. at 62-63. Over time, the definition of burglary has been expanded as a result of judicial interpretation and legislation. The following definition of burglary was approved in 1962 for the Model Penal Code:

(1)

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