Franqui v. State

• Decision Date: 03 July 1997
• Docket Number: No. 84701,84701
• Citation: 699 So.2d 1332
• Parties: 22 Fla. L. Weekly S391 Leonardo FRANQUI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1332

699 So.2d 1332

22 Fla. L. Weekly S391

Leonardo FRANQUI, Appellant, v. STATE of Florida, Appellee.

No. 84701.

Supreme Court of Florida.

July 3, 1997.

Rehearing Denied Oct. 7, 1997.

Eric M. Cohen, Miami, for Appellant.

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

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Leonardo Franqui. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Franqui's convictions. However, because we find a violation of appellant's Sixth Amendment constitutional right to confront his accusers, we reverse his death sentence and remand for a new sentencing proceeding before a jury.

FACTS

The defendant, Leonardo Franqui, along with codefendants Pablo San Martin, Ricardo Gonzalez, Fernando Fernandez, and Pablo 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, grand theft third degree, and burglary. ¹ Franqui, Gonzalez, and San Martin were tried together before a jury in May, 1994.

The record reflects that the Kislak National Bank in North Miami, Florida, was robbed by four gunmen on January 3, 1992. The perpetrators made their getaway in two stolen grey Chevrolet Caprice cars after taking a cash box from one of the drive-in tellers. During the robbery, Police Officer Steven Bauer was shot and killed. Shortly after the robbery, the vehicles were found abandoned two blocks west of the bank.

Approximately two weeks later, codefendant Gonzalez was stopped by police after leaving his residence on January 18, 1992. He subsequently made unrecorded and recorded confessions in which he told police that Franqui had planned the robbery, involved the other participants and himself in the scheme, and chosen the location and date for the crime. He said that Franqui had procured the two stolen Chevys, driven one of the cars, and supplied him with the gun he used during the robbery. He further stated that Franqui was the first shooter and shot at the victim three or four times, while he had shot only once. Gonzalez indicated that he shot low and believed he had only wounded the victim in the leg. Gonzalez consented to a search of his apartment which revealed $1200 of the stolen money in his bedroom closet. He was subsequently reinterviewed by police and, among other things, described how Franqui had shouted at the victim not to move before shooting him. ²

Franqui was also questioned by police on January 18, 1992, in a series of unrecorded and recorded sessions. During his preinterview, Franqui initially denied any involvement in the Kislak Bank robbery, but when confronted with the fact that his accomplices were in custody and had implicated him, he ultimately confessed. Franqui stated that Fernandez had hatched the idea for the robbery after talking to a black male, and he had accompanied the two men to the bank a week before the robbery actually took place. He maintained that the black male friend of Fernandez had suggested the use of the two stolen cars but denied any involvement in the thefts of the vehicles. According to Franqui, San Martin, Fernandez and Abreu had stolen the vehicles. Franqui did admit to police that he and Gonzalez were armed during the episode, but stated that it was Gonzalez--and not himself--who yelled at the victim to "freeze" when they saw him pulling out his gun. Franqui denied firing the first shot and maintained that he fired only one shot later.

At trial, over the objection of Franqui, the confessions of codefendants San Martin and Gonzalez were introduced without deletion of their references to Franqui, upon the trial Franqui was convicted on all counts, and after a penalty phase trial the jury recommended death by a vote of nine to three. The trial court followed the jury's recommendation and sentenced Franqui to death. Franqui presents the following claims on appeal: (1) that the trial court erred in denying Franqui's peremptory challenges of jurors Diaz and Andani; (2) that the trial court abused its discretion in granting the State's peremptory challenge of juror Pascual because the State's reasons for striking this juror were not gender neutral; (3) that the trial court erred in denying Franqui's motion for severance based upon the introduction of nontestifying codefendant Gonzalez's confession at their joint trial; (4) that the trial court erred in admitting the prosecutor's comments to the jury concerning the victim's personality and character; and (5) that the trial court erred in sentencing Franqui to death.

court's finding that their confessions "interlocked" with Franqui's own confession. In addition, an eyewitness identified Franqui as the driver of one of the Chevrolets leaving the bank after the robbery, and his fingerprints were found on the outside of one of the vehicles. Ballistics evidence demonstrated that codefendant Ricardo Gonzalez had fired the fatal shot from his .38 revolver, hitting the victim in the neck, and that Franqui had shot the victim in the leg with his .9 mm handgun.

We find claim 2 to be procedurally barred under Joiner v. State, 618 So.2d 174 (Fla.1993), because defense counsel failed to properly renew his objection to juror Pascual before accepting the jury and allowing it be sworn. ³ See Joiner, 618 So.2d at 176 n. 2 (requiring strict construction of rules of preservation because otherwise, the defense "could proceed to trial before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial"). Similarly, we find claim 4, dealing with the prosecutor's allegedly improper comments appealing to jurors' sympathy also to be procedurally barred because it was not properly preserved for review. ⁴ We also decline to address the merits of claim 5 because these sentencing issues are rendered moot by our decision here to remand for a new penalty phase trial. We address the remaining claims below.

JURY SELECTION

Franqui first contends that the trial court erred in denying his exercise of a peremptory challenge to excuse prospective juror Diaz from the jury. The initial colloquy on the issue was as follows:

MS. BRILL: Wait a minute, Judge, are they striking Aurelio Diaz? State would challenge that strike.

THE COURT: On Aurelio Diaz, let me hear your reasons. Mr. Diaz [the defense counsel], your grounds?

MR. DIAZ: I don't like him.

THE COURT: Okay, that, in that case I will have to disallow that being the reason, I will have to disallow your strike. As it is not a race neutral reason.

We have consistently held that trial courts have broad discretion in determining the propriety We cannot agree with the dissenting opinion that the State's objection was insufficient to permit the trial court to make inquiry with respect to whether juror Diaz was being challenged for nonracial reasons. In support of their position, the dissenters rely on Windom v. State, 656 So.2d 432 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995), and Melbourne v. State, 679 So.2d 759 (Fla.1996), both of which stated that a party objecting to the other side's use of a peremptory challenge on racial grounds must show that the person being challenged is a member of a distinct racial group.

of the exercise of peremptory challenges. Curtis v. State, 685 So.2d 1234 (Fla.1996); Files v. State, 613 So.2d 1301 (Fla.1992). We conclude that the trial court did not abuse its discretion in striking Franqui's peremptory challenge.

Our holding in Windom was that there was not a sufficient objection to reverse the trial court for not requiring the challenging party to provide race-neutral reasons for the challenge. Thus, the rationale of Windom would be pertinent if the trial court in the instant case had declined to inquire into the racial basis for the challenge. Here, however, the trial court clearly understood that the objection to the challenge of a venireperson in Dade County, who was born and raised in Havana, Cuba, and whose name was Aurelio Diaz, was being made on racial grounds. This is especially true because there was never any contention made to the trial court that prospective juror Diaz was not a member of a cognizable minority or that there should not be a Neil ⁵ inquiry. Moreover, we have encouraged trial judges to err on the side of holding a Neil inquiry. State v. Slappy, 522 So.2d 18 (Fla.1988). See Curtis (upholding denial of peremptory challenge in face of contention that objecting party had failed to make a prima facie showing of discrimination). The facts of Melbourne are equally inapposite. In that case, the objection to the challenge was clearly made on racial grounds, but the objecting party failed to preserve the issue for review because the objection was not renewed before the jury was sworn.

Standing alone, defense counsel's statement, "I don't like him," may appear to be a race-neutral reason. However, the trial court was obligated to evaluate the credibility of this statement in the full context in which this statement was made. The present record reveals that juror Diaz was questioned extensively by the court, the State, and defense counsel. The questioning takes place over nearly a half-dozen pages of transcript and yields no obvious reason for disqualification. When defense counsel, as an afterthought, later made an attempt to justify the challenge with other reasons, it was the trial court's responsibility to evaluate these reasons to determine whether they were credible. As we explained in Melbourne, "the trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous." 679 So.2d at 764-65. This trial court's determination to strike the challenge of prospective juror Diaz was not...