Gonzalez v. State

• Decision Date: 10 May 2001
• Docket Number: No. SC94154.,SC94154.
• Citation: 786 So.2d 559
• Parties: Ricardo GONZALEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

786 So.2d 559

Ricardo GONZALEZ, Appellant, v. STATE of Florida, Appellee.

No. SC94154.

Supreme Court of Florida.

May 10, 2001.

William M. Norris, Coconut Grove, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.

PER CURIAM.

We have on appeal an order of the trial court reimposing the death penalty upon Ricardo Gonzalez. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court's determination that death is the appropriate sentence in this case.

PROCEDURAL AND FACTUAL BACKGROUND

On February 14, 1992, Ricardo Gonzalez (Gonzalez) was charged in the Eleventh Judicial Circuit of Florida with committing first-degree murder of a law enforcement officer; armed robbery; aggravated assault; two counts of grand theft; and two counts of burglary in connection with a January 3, 1992, bank robbery. Gonzalez was tried jointly with his codefendants, Leonardo Franqui (Franqui) and Pablo San Martin (San Martin). Gonzalez was convicted on all counts and sentenced to death for the murder. This Court previously summarized the facts of this case as follows:

The defendant, Ricardo Gonzalez, along with codefendants Pablo San Martin, Leonardo Franqui, 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 in the third degree, and burglary. Gonzalez, Franqui, 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, 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 Chevrolets, 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. He was subsequently reinterviewed by police and, among other things, described how Franqui had shouted at the victim not to move before shooting him.

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 Gonzalez, the confessions of codefendants San Martin and Franqui were introduced without deletion of their references to Gonzalez, upon the trial court's finding that their confessions "interlocked" with Gonzalez's own confession.

Gonzalez was convicted on all counts, and after a penalty phase trial, the jury recommended death by a vote of seven to five. The trial court followed the jury's recommendation and sentenced Gonzalez to death. Gonzalez raises the following issues on appeal: (1) the trial court erred in denying Gonzalez's peremptory challenges of jurors Diaz and Andani; (2) the trial court erred in denying Gonzalez's motion for severance based upon the introduction of the confessions of nontestifying codefendants Franqui and San Martin at their joint trial; (3) Gonzalez was denied an impartial hearing at his penalty phase because of the court's refusal to sever his case and to permit him to cross-examine San Martin's experts; and (4) his death sentence is disproportionate.

Gonzalez v. State, 700 So.2d 1217, 1217-18 (Fla.1997).

On direct appeal, this Court held that the trial court's decision to deny the challenges to prospective jurors Diaz and Andani was not clearly erroneous, and that the admission of statements by Gonzalez's codefendants, Franqui and San Martin, was harmless during the guilt phase but detrimental to Gonzalez during the penalty phase. Thus, we affirmed Gonzalez's conviction but vacated his death sentence and remanded for a new penalty phase proceeding. Id. at 1219. The State and Gonzalez filed for certiorari with the United States Supreme Court; both petitions were denied. See Florida v. Gonzalez, 523 U.S. 1145, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998); Gonzalez v. Florida, 523 U.S. 1062, 118 S.Ct. 1393, 140 L.Ed.2d 652 (1998). A new penalty phase was held on August 10, 1998.

At the resentencing, several witnesses testified for the State, including the tellers who were with Officer Bauer the morning of his murder; officers who arrived at the scene after the shooting to gather evidence and render emergency assistance to the victim; detectives who questioned the suspects and obtained both oral and taped statements from Gonzalez describing his role in the crimes leading to Officer Bauer's death; and doctors who, after examining Officer Bauer, determined that the fatal heart injury he had sustained was inflicted by the .38 revolver that Gonzalez admitted to possessing during the crime.

Gonzalez presented the testimony of several witnesses to substantiate his claims for mitigation. Family members testified Gonzalez has a history of migraine headaches; has always been law-abiding; is a member of loving, supportive households; and is well educated and religious. The testimony of three doctors was also presented. The prior testimony of Dr. Wagschul, a board certified neurologist, was read to the jury. Dr. Wagschul testified concerning head injuries Gonzalez received, including injuries during boxing. As a result of his examination and the information received, Dr. Wagschul diagnosed Gonzalez as suffering from pugilistic encephalopathy. However, on cross-examination Dr. Wagschul stated Gonzalez performed normally on all the neurological tests. The trial court also allowed the testimony of Dr. Fisher who had done research and a thesis on future dangerousness. Dr. Fisher indicated Gonzalez was not psychotic, had no major mental disturbance, was not retarded, did not use drugs or alcohol, and did not show signs of suffering damage as a result of boxing. This expert opined that Gonzalez would make a good adjustment to prison. Dr. Hyman Eisenstein, a neuropsychologist, opined that Gonzalez was under extreme mental or emotional distress at the time he committed the offenses and committed the crimes to get money to make his wife happy.

The trial court sentenced Gonzalez to death, finding six aggravating factors, which were merged into three factors: prior violent felonies based on the contemporaneous convictions for armed robbery and aggravated assault; murder committed during a robbery/murder committed for pecuniary gain; and murder committed to avoid a lawful arrest/victim a law enforcement officer performing his duties/murder committed to hinder enforcement of laws. These aggravating circumstances were found to outweigh the following mitigating circumstances: no significant prior criminal history; brain damage, learning disability and below-average intelligence; remorse; cooperation with authorities; life sentences given to two codefendants; and good conduct while incarcerated and potential for rehabilitation. The trial court considered but rejected the statutory mental health mitigators, as well as the minor participation mitigator. The nonstatutory mitigator of family background was likewise rejected.

In this appeal Gonzalez contends: (1) this Court improperly used a harmless error analysis based on the hearsay rule rather than one based on the confrontation clause to determine whether or not the admission of codefendant statements was proper during Gonzalez's trial; (2) using the victim's status as a police officer as an aggravator as well as to increase the penalty for homicide from twenty-five years without eligibility for release to life without parole constitutes impermissible doubling; (3) substantial organic and behavioral support existed for the expert opinion that was erroneously rejected by the Court when it considered the mental distress mitigator; (4) prosecutor's passionate closing and impermissible personal statements were error; and (5) proportionality analysis requires that Gonzalez's death sentence be vacated.

DISCUSSION

Harmless Error Analysis Used By the Supreme Court

Gonzalez contends this Court used a hearsay-based harmless error analysis rather than a confrontation clause analysis in reviewing the trial court's admission of his codefendants' inculpatory statements during his initial trial. On direct appeal, Gonzalez argued the trial court's...