Fernandez v. State, 84,700

• Decision Date: 25 February 1999
• Docket Number: No. 84,700,84,700
• Citation: 730 So.2d 277
• Parties: Fernando FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

730 So.2d 277

Fernando FERNANDEZ, Appellant, v. STATE of Florida, Appellee.

No. 84,700

Supreme Court of Florida.

February 25, 1999.

Rehearing Denied April 15, 1999.

Alfonso M. Saldana, Miami, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Randall Sutton, Assistant Attorney General, Miami, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Fernando Fernandez. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions. However, because we find that appellant's death sentence is not proportional, given the circumstance that Fernandez was not a triggerman, to the life sentences of his codefendants Pablo Abreu and Pablo San Martin, we vacate the death sentence and remand for imposition of a life sentence.

Fernandez and codefendants Leonardo Franqui, Ricardo Gonzalez, San Martin, and Abreu were charged with first-degree murder of a law enforcement officer, armed robbery with a firearm, aggravated assault, unlawful possession of a firearm while engaged in a criminal offense, third-degree grand theft, and burglary.¹ Fernandez was tried before a jury in May 1994. On January 3, 1992, a cash box was stolen at gunpoint from a drive-in teller at the Kislak National Bank in North Miami. The perpetrators fled the scene in two stolen grey Chevrolet Caprice cars. During the robbery, two gunmen shot and killed North Miami police officer Steven Bauer. Shortly thereafter, the stolen vehicles were found abandoned two blocks from the bank.

The day after the murder, appellant was watching television at the home of Claudio Prado when a report of the North Miami bank robbery and murder was broadcast. Prado testified that appellant listened to the television report and then told Prado that he had been involved in the crime and wanted to see a Santeria priest known as a babalao. Prado testified that he took appellant that same day to see Lazaro Hernandez, who was a babalao, and that appellant asked Hernandez to perform a ritual to prevent appellant from being apprehended. Hernandez subsequently informed police as to appellant's statements to him regarding the crime and shared a $100,000 reward with Prado.

Upon his arrest, appellant led police to the codefendants, who confessed that they had participated in the robbery and murder. Ballistics evidence showed that Gonzalez fired a .38 revolver, hitting the victim in the neck, and Franqui fired a .9 mm handgun. San Martin took the money tray, and Abreu drove a getaway car in which he waited a few blocks from the crime scene and then transported the perpetrators to his apartment.

Five months after the robbery and murder, inmate Luis Sanchez befriended appellant while both were in jail. Sanchez testified that appellant told him that a friend named Gary Cromer had described a bank robbery plan to him and that appellant had "stolen" the plan for his own use. Appellant told Sanchez that he obtained the guns used in the robbery, stole the getaway cars, drove the codefendants to the crime scene, witnessed the crime, facilitated the getaway, and shared in the proceeds of the robbery. Cromer testified that he and a friend had devised the bank robbery plan in 1991, and Cromer had later described the plan to appellant. Three or four weeks before the crime, appellant introduced Cromer to the codefendants. Cromer then went with appellant and the codefendants to the bank and showed them the usual routine of the bank tellers as they opened their stations for business. Cromer said he did not participate in the robbery or share in the proceeds.

Abreu pled guilty prior to trial and received a life sentence. The remaining defendants moved in pretrial motions to suppress their confessions and sever their trials based upon their allegedly inconsistent statements given to police. After hearings, the court denied all of the codefendants' motions except for appellant's motion to sever his trial. Pursuant to the court's order, the confessions of the codefendants were not admitted at trial against appellant. The codefendants were tried together with two juries, designated "Jury A" to hear appellant's case and "Jury B" to hear the cases of Franqui, Gonzalez, and San Martin.² Jury A found appellant guilty of first-degree murder of a law enforcement officer, armed robbery, aggravated assault, and both counts of grand theft and burglary.

During the penalty phase, the State relied on evidence presented during the guilt phase. The defense presented testimony of appellant's mother, who testified that she once asked appellant to sell cocaine in order to raise money to post bond for appellant's father, who was in jail on a drug charge. Appellant's sister testified that she and appellant used illegal drugs at home and that their parents never tried to stop them. The defense also presented testimony of a prison chaplain who stated that appellant was remorseful and a psychologist who stated that appellant tested just below the low-average range of intelligence and that he had a personality disorder. Appellant testified that he tried to back out of the robbery on the morning of the crime but could not because Franqui threatened to shoot him and harm his family. The jury recommended a death sentence by a vote of seven to five.

A sentencing proceeding was held before the court, and additional testimony was presented. The defense presented a transcript of the statement that appellant made to police two weeks after the murder of Officer Bauer in which appellant stated that he participated in the crime under duress because of threats by Franqui. The State presented testimony of Hialeah police detective Albert Nabut, who interviewed appellant after an attempted robbery and murder near Hialeah. The detective stated that appellant told him he had informed Franqui and San Martin of the existence of a check-cashing business run by Danilo Cabanas and his son. Franqui, San Martin, and Abreu subsequently attempted to rob Cabanas at gunpoint after he left a bank with $25,000 accompanied by his son and Raul Lopez. During the attempted robbery, Lopez was killed by a bullet consistent with a .357 revolver used by Franqui.³

In this case, the judge considered the jury's recommendation and sentenced appellant to death, finding three aggravating circumstances: previous convictions of violent felonies; murder committed during the course of a robbery and for pecuniary gain (merged into one aggravator); and murder for the purpose of avoiding or preventing lawful arrest or effecting an escape from justice and that the victim was a law-enforcement officer (merged into one aggravator). See § 921.141(5)(b), (d), (e), (f), (j), Fla. Stat. (1993). The court gave great weight to these aggravating circumstances and found no statutory mitigating circumstances. Of the nonstatutory mitigating circumstances proffered by the defense, the court found that only two were proven: family history of cocaine use by appellant and his parents and appellant's cooperation with authorities. The court gave these mitigating circumstances little weight. In the sentencing order, the trial court provided an Enmund-Tison⁴ analysis and concluded that appellant was eligible for the death penalty because he was a major participant in the crime, intended lethal force to be used, and had exhibited a reckless indifference to human life.

In this Court, appellant appeals his convictions and death sentence and raises twelve issues.⁵

GUILT PHASE

Appellant first contends that the trial court erred in granting the State's challenges for cause against four prospective jurors who stated during voir dire that they were opposed to the death penalty. Appellant alleges that these four venirepersons should not have been excused because, upon examination by defense counsel, they stated that they could follow the law. First, defense counsel did not specifically object on these grounds to the State's challenges to the four venirepersons or to the court's granting of them. See Turner v. State, 645 So.2d 444, 446 (Fla. 1994). Therefore, this claim is procedurally barred. Even if this claim had been properly preserved for appellate review, our examination of the prospective jurors' statements during voir dire reveals that this claim has no merit. The standard for determining whether a prospective juror may be excused for cause because of his or her views of the death penalty is whether the prospective juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the juror's instructions or oath. See Foster v. State, 679 So.2d 747 (Fla. 1996). It is within a trial court's province to determine whether a challenge for cause is proper, and the trial court's determination of juror competency will not be overturned absent manifest error. See Mendoza v. State, 700 So.2d 670, 675 (Fla. 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998). The four prospective jurors to whom appellant points gave equivocal responses to questions from the prosecutor, defense counsel, and the court as to whether they could follow the law and set aside their beliefs concerning the death penalty. We find that no manifest error has been shown here.

Appellant next argues that the trial court erred in denying a defense motion for mistrial based on unduly prejudicial references in the prosecutor's opening statement. Appellant contends that the prosecutor's references to appellant as "a robber and a murderer" and to the victim as singing a Christian song just before he was shot were designed to inflame the jury. Appellant also argues that the prosecutor further attempted to inflame the jury by describing the bullet's trajectory through the victim's body. A trial court has discretion in controlling opening statements, which are not evidence. See Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990). We will not interfere...