Garcia v. State, 75961

• Decision Date: 24 June 1993
• Docket Number: No. 75961,75961
• Citation: 622 So.2d 1325
• Parties: 18 Fla. L. Week. S382 Enrique GARCIA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1325

622 So.2d 1325

18 Fla. L. Week. S382

Enrique GARCIA, Appellant, v. STATE of Florida, Appellee.

No. 75961.

Supreme Court of Florida.

June 24, 1993.

Rehearing Denied Sept. 3, 1993.

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR and Judith J. Dougherty, Asst. CCR, Office of Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

SHAW, Justice.

Garcia appeals the denial of his rule 3.850 motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1); Fla.R.Crim.P. 3.850. We reverse.

The facts of this case are set out fully in our opinion on direct appeal. See Garcia v. State, 492 So.2d 360 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986). Garcia was convicted of two counts of first-degree murder for his role in the robbery of a farm store in which two persons were killed. In accordance with the jury's eight-to-four vote, the judge imposed the death penalty for both crimes, finding three aggravating ¹ and one mitigating circumstance. ² We affirmed. Garcia subsequently filed the present rule 3.850 motion for postconviction relief, which was denied following an evidentiary hearing. Garcia appeals.

Garcia raises twenty-three issues, ³ a number of which are procedurally barred because they were either raised on direct appeal ⁴ or could have been so raised if properly preserved. ⁵ Of those remaining, we dismiss three without discussion. ⁶

Initially, we find Garcia's allegation in Issue 1 that the trial court failed to conduct a fair evidentiary hearing on the rule 3.850 motion to be without merit. The trial court cut off defense counsel's questioning of witnesses at several points, but only after asking defense counsel the purpose of the questioning and determining further inquiry irrelevant. We find no abuse of discretion.

I. INEFFECTIVENESS OF TRIAL COUNSEL

In Issue 2 Garcia claims trial counsel was ineffective during the penalty phase because he should have had the mental health expert, Dr. Ritt, testify, and because he failed to present testimony of Grover Yancey concerning statements made by codefendant Torres. ⁷ We discuss each below.

Garcia's claim that counsel was ineffective for failing to have the mental health expert, Dr. Ritt, testify during the penalty phase is without merit. The decision was a tactical one. Had Dr. Ritt testified, he would have been subject to cross-examination concerning damaging admissions Garcia had made to him.

Prior to discussing the remainder of Issue 2, it is necessary to set forth additional facts. During the robbery of the farm store on October 8, 1982, the store owners, Willie and Martha West, were killed, and the cashier, Rosenna Welsh, wounded. ⁸ Four persons committed the robbery: Benito Torres (also known as Benito Contreras, or Benny), age thirty; Louis (Gordo) Pina, age twenty; the defendant, Enrique (Ricky) Garcia, age twenty; and a minor, Urbano (Junior) Ribas, age seventeen. Of the four, Garcia was tried first and only he was sentenced to death, as explained below. The question of who was actually the "shooter" or "shooters" was a central issue in Garcia's trial.

After he and Louis Pina were arrested on the day of the robbery, Garcia made several statements to police in which he repeatedly referred to the participants in the crime as Benny Contreras, Louis Pina, himself, and a fourth person who was Benny's friend. Initially, Garcia never used the name Urbano Ribas when speaking of the fourth participant, but instead used the name Joe, or Jose, Perez. In one statement, which was later submitted to the jury, Garcia described the codefendants' respective roles in the crime--Benny and Joe Perez were the shooters, with Benny shooting one woman, and Perez shooting the other woman and man. ⁹ In a separate statement given three days after he was arrested, which was also submitted to the jury, Garcia stated conclusively that Benny's friend, Joe Perez, who allegedly shot two of the victims, is the same person as Urbano Ribas, the seventeen year old codefendant. ¹⁰

Prior to trial, codefendant Benny Torres shared a prison cell with Grover Yancey, and Torres spoke of the crime to him on a number of occasions. On March 30, 1983, Yancey gave a statement to one of the prosecutors, which was disclosed to defense counsel, that substantially corroborated Garcia's version of the shootings. Yancey said that Torres confessed to him that he shot one woman and that the minor, the "17 year old kid," shot the other two persons. ¹¹ As noted above, Urbano Ribas whom Garcia identified as Joe Perez, was the only codefendant who was seventeen years old at the time of the crime.

Garcia's appointed counsel declined to introduce Yancey's statement at trial and now, as the second part of Issue 2, Garcia claims that this constituted ineffectiveness. On collateral review, trial counsel Bone stated that he did not use the statement in the penalty phase because he considered it to be inadmissible hearsay. Garcia correctly points out, however, that the exclusionary rules of evidence, including the rule barring use of hearsay statements, are inapplicable in the penalty phase of a capital trial. Section 921.141(1), Florida Statutes (1979), provides in part:

In the [penalty] proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.

Thus, the hearsay rule was not an automatic bar to Yancey's statement.

We conclude that trial counsel's failure to seek admission of Yancey's statement during the penalty phase constitutes ineffectiveness under the two-pronged Strickland test. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984) (counsel's error must be both "[un]reasonable considering all the circumstances" and sufficiently prejudicial "to undermine confidence in the outcome"). Counsel's failure to comprehend the most fundamental requirement governing the admissibility of evidence in capital sentencing proceedings was clearly unreasonable, particularly where the provision is set out plainly in Florida Statutes. The error also was sufficient to undermine confidence in the jury recommendation of death. The fact that a number of months after the crime codefendant Torres, in a statement adverse to his own self-interest, allegedly told Yancey substantially the same version of the shootings that Garcia himself had told police on the night of the killings--that Torres shot one woman, and Ribas, the seventeen-year-old known to Garcia as Joe Perez, shot the other two persons--would have immeasurably bolstered Garcia's claim that he was not a shooter. We note that four jurors voted for life imprisonment even in the absence of Yancey's statement.

II. BRADY VIOLATION

Garcia points out in Issue 4 that in spite of Garcia's identification of Jose Perez as Urbano Ribas in his statement to police three days after the shootings, the state attorney in his opening argument to the jury nevertheless claimed that Joe Perez never really existed--that when Garcia referred to Perez's deeds (i.e., the shooting of two victims) in his statements to police, he was in fact referring to his own acts:

You will hear later [from us, the State,] that there never was a Joe Perez....

....

Again: Who is Joe Perez?

The evidence will convince you, I believe, in this case that Joe Perez is none other than Enrique Garcia, devised by Garcia because he wanted to cover up and not testify against himself....

The state attorney explicitly argued that Joe Perez is not the same person as Urbano Ribas:

Monday, three days after these crimes, the Defendant was questioned again. Now, he artfully and untruthfully says, Joe Perez is none other than Junior Ribas, one of the four. But this won't work then or today.

Later, in his closing argument, the state attorney hammered away at the same point--that Joe Perez and Garcia are one and the same person and Garcia was thus a shooter by his own words:

Now, I argued to you in the beginning of this trial that there was a fictional Joe Perez, and you know now that that is true ... Ricky Garcia used Joe Perez as the strawman.

I think that you can find that whenever anything bad was done in the statements, it was done by Joe Perez, and I think you can find by and large that Joe Perez is the defendant Garcia here.

You heard the defendant say in the statement finished just before midnight on the day of the execution and robberies, that at the store, Joe Perez and Benny were the ones who went in and said that there was a holdup; that is, the defendant would do that. It was Benny and the defendant who went in and said it was a holdup.

You heard him say in that statement that Benny and not Louis Pina, but Joe Perez. So, Benny and Joe Perez did the shooting. Benny and Garcia did the shooting.

Garcia now claims that the State withheld from the defense a key statement given to police by Lisa Smith, who turned Ribas in to police on the night of the shootings. The taped and transcribed statement, dated October 19, 1982, directly contradicts the state attorney's opening and closing arguments. Rather than showing that Joe Perez never existed and was instead a fictitious character created by Garcia during questioning, the statement shows just the opposite--that Urbano Ribas identified himself to police as Perez when he was first arrested and that he had identification papers in that name:

Q. And then what happened...