Franqui v. State
| Decision Date | 11 April 2011 |
| Docket Number | No. SC05–830.,SC05–830. |
| Citation | 59 So.3d 82 |
| Parties | Leonardo FRANQUI, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HERE
Todd G. Scher, of Todd G. Scher, P.L., Miami Beach, FL, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.PER CURIAM.
Leonardo Franqui appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850. We have jurisdiction under article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we affirm the circuit court's order denying postconviction relief.
Leonardo Franqui was convicted of the December 6, 1991, murder of Raul Lopez in Medley, Florida. We affirmed Franqui's conviction for the first-degree murder of Lopez and the resulting death sentence in Franqui v. State, 699 So.2d 1312 (Fla.1997). Franqui now appeals the denial of his first motion, as subsequently amended, for postconviction relief filed in 1999 under rule 3.850. An evidentiary hearing was held on two of the claims and relief was summarily denied on the remaining claims.
The relevant circumstances of the crime and trial are set forth in the Court's opinion on direct appeal as follows:
Leonardo Franqui and codefendants Pablo San Martin and Pablo Abreu were charged with one count of first-degree murder, two counts of attempted first-degree murder with a firearm, one count of attempted robbery with a firearm, two counts of grand theft, and one count of unlawful possession of a firearm while engaged in a criminal offense. Prior to trial, codefendant Abreu negotiated a plea with the State and subsequently testified against Franqui during the penalty phase of the proceedings.
The following facts were established at the trial of Franqui and San Martin. Danilo Cabanas, Sr., and his son, Danilo Cabanas, Jr., operated a check-cashing business in Medley, Florida. On Fridays, Cabanas Sr. would pick up cash from his bank for the business. After Cabanas Sr. was robbed during a bank trip, Cabanas Jr. and a friend, Raul Lopez, regularly accompanied Cabanas Sr. to the bank. The Cabanases were each armed with a 9mm handgun, and Lopez was armed with a .32 caliber gun.
On Friday, December 6, 1991, the Cabanases and Lopez drove in separate vehicles to the bank. Cabanas Sr. withdrew about $25,000 in cash and returned to the Chevrolet Blazer driven by his son. Lopez followed in his Ford pickup truck. Shortly thereafter, the Cabanases were cut off and “boxed in” at an intersection by two Chevrolet Suburbans. Two occupants of the front Suburban, wearing masks, got out and began shooting at the Cabanases. When Cabanas Sr. returned fire, the assailants returned to their vehicle and fled. Cabanas Jr. saw one person, also masked, exit the rear Suburban.
Following the gunfight, Lopez was found outside his vehicle with a bullet wound in his chest. He died at a hospital shortly thereafter. One bullet hole was found in the passenger door of Lopez's pickup. The Suburbans, subsequently determined to have been stolen, were found abandoned. Both Suburbans suffered bullet damage—one was riddled with thirteen bullet holes. The Cabanases' Blazer had ten bullet holes.
Franqui's confession was admitted at trial. When police initially questioned Franqui, he denied any knowledge of the Lopez shooting. However, when confronted with photographs of the bank and the Suburbans, he confessed. Franqui explained that he had learned from Fernando Fernandez about the Cabanases' check cashing business and that for three to five months he and his codefendants had planned to rob the Cabanases. He described the use of the stolen Suburbans, the firearms used, and other details of the plan. Franqui admitted that he had a .357 or .38 revolver. Codefendant San Martin had a 9mm semiautomatic, which at times jammed, and codefendant Abreu had a Tech–9 9mm semiautomatic, which resembles a small machine gun. Franqui stated that San Martin and Abreu drove in front of the Cabanases and Franqui pulled alongside them so they could not escape. Once the gunfight began, Franqui claimed that the pickup rammed the Cabanases' Blazer and Lopez opened fire. Franqui then returned fire in Lopez's direction.
San Martin refused to sign a formal written statement to police. However, San Martin orally confessed and, in addition to relating his own role in the incident, detailed Franqui's role in the planning and execution of the crime. San Martin admitted initiating the robbery attempt and shooting at the Blazer but not shooting at Lopez's pickup. He placed Franqui in proximity to Lopez's pickup, although he could not tell if Franqui had fired his gun during the incident. San Martin initially claimed that the weapons used in the crime were thrown off a Miami Beach bridge, but subsequently stated that he had thrown the weapons into a river near his home, where they were later recovered by the police. San Martin did not testify at trial, but his oral confession was admitted into evidence over Franqui's objection.
Franqui, 699 So.2d at 1315–16. The jury found Franqui guilty as charged and recommended death by a nine-to-three vote. The trial court followed the jury's recommendation after finding and weighing four aggravators against two nonstatutory mitigators. The aggravators found by the trial court were: (1) Franqui was previously convicted of prior violent felonies; (2) the murder was committed during the course of an attempted robbery; merged with (3) the murder was committed for pecuniary gain; and (4) the murder was committed in a cold, calculated, and premeditated manner. The court found no statutory mitigators, but found two nonstatutory mitigating circumstances: (1) Franqui had a poor family background and deprived childhood; and (2) Franqui was a caring husband, father, brother, and provider.1See Franqui, 699 So.2d at 1316.
Franqui appealed his convictions and sentences to this Court.2 In the direct appeal, we held that although the trial court erred in admitting codefendant San Martin's written confession during the penalty phase of the trial, the error was harmless in light of Franqui's own confession and other extensive evidence of guilt. Id. at 1328. We reversed the two attempted murder convictions on the authority of Valentine v. State, 688 So.2d 313 (Fla.1996) (). Franqui, 699 So.2d at 1323.3 We affirmed the remaining convictions and sentences.
On January 15, 1999, Franqui filed his initial rule 3.850 motion, which he amended on April 18, 2000, raising a total of ten claims.4 After holding a Huff hearing 5 on January 8, 2001, the court issued an order on January 7, 2002, summarily denying all of Franqui's claims except the claim pertaining to Abreu's penalty phase testimony, which was presented by the State to support the CCP aggravator. The Court allowed Franqui to participate in an evidentiary hearing in codefendant San Martin's case with respect to two claims raised by San Martin concerning the alleged recantation of codefendant Abreu's penalty phase testimony. Prior to the hearing, and after the Supreme Court issued its decisions in Ring v. Arizona,6 and Atkins v. Virginia,7 Franqui filed a supplement to his motion on October 18, 2002, raising a Ring claim and an Atkins claim.
At the evidentiary hearing held on December 18, 2002, Pablo Abreu testified concerning the planning of the crime and the timing of the decision to kill Lopez. After the hearing, Franqui filed an additional supplement to his postconviction motion pertaining to his Ring, Atkins, and Abreu claims. On March 31, 2005, the circuit court denied the claims relating to Abreu's testimony and also denied the Ring claim. Franqui filed the present appeal, raising five claims. Because the circuit court did not rule on the mental retardation claim, we temporarily relinquished jurisdiction to the postconviction court so it could rule on the Atkins claim. The mental retardation claim was summarily denied on February 21, 2008.
On return to this Court from the relinquishment, oral argument was held on March 12, 2009, and we again temporarily relinquished jurisdiction to the circuit court with directions to hold an evidentiary hearing on Franqui's mental retardation claim. See Franqui v. State, 14 So.3d 238 (Fla.2009). At the evidentiary hearing held on September 17, 2009, the parties stipulated to introduction into evidence of two expert psychological reports. On October 6, 2009, the circuit court entered its order denying Franqui's mental retardation claim. The case has now returned from the relinquishment period for review and resolution of all pending issues by this Court. As we explain below, the postconviction claims presented in this appeal are without merit. Thus, we affirm the trial court's denial of postconviction relief.
In this appeal, Franqui has presented the following claims: (1) this Court's interpretation of mental retardation, as set forth in Cherry v. State, 959 So.2d 702 (Fla.2007), and Nixon v. State, 2 So.3d 137 (Fla.2009), mandating a cut-off IQ score of 70 or below to meet the first prong of the test for mental retardation in capital sentencing, is contrary to Atkins v. Virginia and the Eighth Amendment to the United States Constitution; (2) the circuit court erred in summarily denying various claims of ineffective assistance of counsel for failure to object to the prosecutor's improper, inflammatory, and unduly prejudicial comments and arguments at the guilt and penalty phases; (3) the court erred in summarily denying Franqui's claim of ineffective assistance of counsel regarding the...
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