Diaz v. State, 68493

• Decision Date: 08 October 1987
• Docket Number: No. 68493,68493
• Parties: 12 Fla. L. Weekly 514 Angel DIAZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1045

513 So.2d 1045

12 Fla. L. Weekly 514

Angel DIAZ, Appellant, v. STATE of Florida, Appellee.

No. 68493.

Supreme Court of Florida.

Oct. 8, 1987.

Helen Ann Hauser, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., and Susan Odzer Hugentugler, Asst. Atty. Gen., Miami, for appellee.

SHAW, Justice.

One of three Spanish-speaking men shot and killed the bar manager during the December 29, 1979, holdup of a Miami bar. No one witnessed the shooting. The majority of the patrons and employees had been forcibly confined to a restroom. A dancer hiding under the bar did not see the triggerman. Angel Diaz was charged with the crimes and convicted of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery, and one count of possessing a firearm during the commission of a felony. Diaz conducted his own defense with standby counsel from the opening statements through conviction. He was represented by counsel during jury selection and the sentencing phase. The trial court sentenced Diaz to a total of 834 years of imprisonment and imposed the jury's recommended sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Diaz challenges his convictions on several grounds. He first argues that the court erroneously denied an ore tenus defense motion for continuance. The defense received notice one week before trial that the state intended to call Gajus as a witness. Diaz allegedly discussed the robbery and murder with Gajus who occupied a neighboring cell during Diaz's pre-trial incarceration. Defense counsel immediately deposed Gajus after receiving the state's notice, but, on the first day of trial, moved for a continuance, claiming insufficient time to discuss these statements with Diaz or to investigate their truth. We find no abuse of discretion in the trial court's denial of Diaz's requested continuance.

Diaz next contends that the court erroneously excused for cause two jurors who opposed the death penalty creating a conviction-prone jury. We have previously rejected this argument. Lambrix v. State, 494 So.2d 1143 (Fla.1986); Dougan v. State, 470 So.2d 697 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986).

Diaz claims that the security measures at trial and his appearance in shackles biased the jury. The court's obligation to maintain safety and security in the courtroom outweighs, under proper circumstances, the risk that the security measures may impair the defendant's presumption of innocence. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Dufour v. State, 495 So.2d 154 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). The court found in the instant case that sixty to seventy percent of the security personnel were in plain clothes and blended in with the spectators. The court suggested that Diaz obstruct the jury's view of the shackles by keeping his pants legs pulled down over the shackles or by placing a box or briefcase in front of his feet. Diaz made no effort to hide the shackles. We find that Diaz's prior murder and armed robbery convictions and his record of escapes and prior incidents of violence support the court's decision that the security measures taken were the minimum required.

Diaz next argues that the court erred in allowing him to proceed pro se because (1) his request was not timely, (2) he needed an interpreter, and (3) his movement before the jury during such representation drew attention to his shackles. Diaz made his request after jury selection, but before the opening statement. The court conducted a Faretta inquiry, ¹ warning Diaz of the difficulties of proceeding pro se, and expressing its opinion that to do so was not in his best interest. The court emphasized the problems arising from his need for an interpreter:

THE COURT: ... Mr. Diaz, you heard all the statements that the Court made and my inquiry into your ability to practice law, to represent yourself in this courtroom, understanding what you believe to be the facts of the case as you know them, Mr. Lamons' ability as a defense attorney, the case the State has against you, your inability to speak the English language, the necessity of an interpreter at every stage of this proceeding, and the fact that the State is requesting the death penalty in this particular case.

Do you, yes or no, desire to represent yourself?

THE DEFENDANT: Yes, ma'am.

The record shows that Diaz competently, knowingly, and voluntarily waived his right to counsel and exercised his right to conduct his own defense. He made his choice knowing that he would proceed in shackles. His claimed ignorance of the fact that such representation might prejudicially increase the shackles impact on the jury is untenable. Further, we reject his contention that the court should have revoked its permission to proceed pro se when Diaz argued with the witnesses.

Diaz contends that all death sentences are cruel and unusual in violation of the eighth amendment to the United States Constitution. This argument was rejected in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied sub nom., Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and a multitude of subsequent cases.

Diaz next argues that we must vacate his death sentence because the court failed to instruct the jury on the intent necessary to support a sentence of death under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). As we recently noted in Jackson v. State, 502 So.2d 409 (Fla.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 686 (1987), the United States Constitution does not require a specific jury finding of the requisite intent. Such findings may be made in an "adequate proceeding before some appropriate tribunal--be it an appellate court, a trial judge, or a jury." Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 700, 88 L.Ed.2d 704 (1986) (footnote omitted).

The United States Supreme Court recently revisited Enmund in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), stating

Enmund held that when "intent to kill" results in its logical though not inevitable consequence--the taking of human life--the Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.

The court concluded that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Id. (footnote omitted).

Turning to the instant case, Candice Braun testified that on the night of December 29, 1979, Diaz returned to their home and told her that Angel Toro shot a man during the robbery. Gajus, however, who occupied the neighboring cell during Diaz's pre-trial incarceration, provided evidence that Diaz shot the victim. He testified as follows:

[Diaz] indicated that he shot the man.

Q. Where did he indicate he shot the man?

A. In the chest.

Q. Did he ever come out and say to you in the words, "I shot the man in the chest"?

A. No, he did not.

Q. You were inferring that from his indications?

A. Yes.

We need not determine, however, whether this evidence supports a finding of intent to kill. As in Tison, Diaz was actively involved in and present during the commission of the crimes. He and his fellow robbers each discharged a gun during the robbery. There is evidence that Diaz's gun had a silencer. Eight to twelve persons occupied the bar at the time of the robbery. Based on our review of the record, we find that Diaz was a major participant in the felonies and at the very least was recklessly indifferent to human life. The Enmund/Tison culpability requirement is thus satisfied. ²

We agree with Diaz that the court erroneously found the aggravating factor that he knowingly caused great risk of danger to many persons. This must be based on a high probability, not a mere possibility or speculation. Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73...