Gonzalez v. State

• Decision Date: 26 August 2020
• Docket Number: No. 3D18-980,3D18-980
• Citation: 306 So.3d 1124
• Parties: Joel GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

306 So.3d 1124

Joel GONZALEZ, Appellant,

v.The STATE of Florida, Appellee.

No. 3D18-980

District Court of Appeal of Florida, Third District.

Opinion filed August 26, 2020.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before SALTER, LINDSEY and HENDON, JJ.

SALTER, J.

Joel Gonzalez appeals his convictions and sentences for aggravated burglary with a firearm (count 1), armed kidnapping with a firearm (count 2), attempted second degree murder with a firearm (count 3), and possession of a firearm by a convicted felon (count 4). Count 4 was bifurcated. Following the jury trial and a guilty verdict on counts 1 through 3, Gonzalez was sentenced on those counts to forty years in state prison followed by ten years of probation.

The trial court pretermitted a jury trial on bifurcated count 4 for possession of a firearm by a convicted felon, concluding that the element of "with a firearm" in counts 1 through 3 and the jury's verdicts on those counts sufficed (the defense had stipulated for purposes of count 4 that Gonzalez was a convicted felon). The trial court sentenced Gonzalez to a term of fifteen years in state prison on count 4, to be served concurrently with the forty-year term on the other counts.

On appeal, Gonzalez contends that he is entitled to a new trial based on three errors by the trial court:

1. The admission, over objection, of a glove found a week after the crime inside a van owned by Gonzalez's sister;

2. The trial court's failure to submit count 4, the charge for possession of a firearm by a convicted felon, to the jury; and

3. The trial court's consideration of Gonzalez's lack of remorse during the sentencing hearing.

We summarize the background and procedural history of the case in the circuit court, and then address in order the three points of error raised by Gonzalez. Finding each point well taken and independently sufficient, we reverse the convictions and sentences and remand the case to the trial court for a new trial. In an abundance of caution, we also direct that the new trial and any sentencing, should a conviction again ensue, is to be conducted by a different circuit court judge.¹

Background and Procedural History

This case stems from a home invasion robbery perpetrated by two males in April 2013. The victim was home alone when two men forced their way inside. One man held the victim at gunpoint while the other ransacked rooms in the house. The victim was struck on the side of her head with the butt of the gun and then was shot in the side of the neck. After the intruders left, and noticing that her cellphone had been taken, the victim walked to the neighborhood beauty salon where fire rescue and police officers were called for assistance.

That same day, not long after the incident, Lieutenant De Los Santos happened to drive by the victim's neighborhood and saw two men walking around aimlessly near a busy intersection. On direct examination at trial, the lieutenant testified that he had seen the men walking from a white van. However, on cross-examination and after defense counsel refreshed his recollection with his prior deposition testimony from 2015, the lieutenant admitted that he never mentioned seeing a white van.

Thereafter, the lieutenant saw Gonzalez walk into the yard of a house that had a Ford Mustang for sale. Gonzalez peered into the Mustang and placed his hand on the front passenger side window as he did so. The lieutenant figured that the two men were only interested in the car and so he drove away without incident. Based on Lieutenant De Los Santos’ observation, law enforcement recovered a latent palm print from the Mustang.

After further investigation, Gonzalez was considered a suspect. A photo lineup was conducted for the victim. The lineup contained six photographs of persons that looked like Gonzalez. The victim selected Gonzalez's photo and identified Gonzalez as the man who had shot her. Gonzalez was arrested six days after the home invasion and shooting. A white cargo van located at Gonzalez's residence and its contents were photographed. Crime scene investigators processed the victim's house, but no latent fingerprints were recovered.

At trial, the State called the victim and other witnesses to testify, including Lead Detective Cosner, Lieutenant De Los Santos, a crime scene investigator, a fingerprint examiner, and two civilians who were present the day of the incident. Two witnesses, Lieutenant De Los Santos and Ms. Arritola (who lived nearby) testified that they saw Gonzalez in the vicinity of the crime scene. Ms. Arritola testified that Gonzalez looked like one of two men who came to her door around noon on the day of the incident looking for a man who did not live in Ms. Arritola's home.

The theory of defense was misidentification, as there was no direct physical evidence linking Gonzalez to the crime scene. Further, Gonzalez had noticeable tattoos along both of his arms and the victim never described her assailant as having tattoos. She testified at trial that she did not notice them. There was only circumstantial evidence potentially linking Gonzalez to the crime, including a latent palm print recovered from the Mustang parked a few blocks away from the victim's home and a glove that was found inside a van owned by Gonzalez's sister.

The defense filed a motion in limine to exclude two items that were found inside the white van that belonged to Gonzalez's sister. One item was a .380 shell casing different from the casing found inside the victim's home, which came from a .32 caliber gun. The other item found inside the van was a glove. Law enforcement searched the van after Gonzalez's sister, as owner of the vehicle, gave consent.

The State confirmed that the glove did not have any fingerprints, and later stated that the glove was never processed. The State's theory for admitting the glove into evidence at trial was that no DNA or fingerprint evidence was recovered at the scene of the crime. While Gonzalez held the victim at gunpoint, the other perpetrator, presumably wearing gloves, was ransacking the house. Thus, the State concluded this glove was probative that Gonzalez was involved in the crime. The trial court ruled that the shell casing was out, but the glove was in. The prosecution introduced three photographs of the glove.

The jury deliberated for three days. During deliberation, the jurors sent out questions about the timeline of events testified to by the witnesses and the time the 911 call was made, and they asked why the interior of the van was not processed for evidence. On the third day, the jury sent a note stating that they could not "come to a unanimous decision." The trial court encouraged the jury to relax over lunch and look again through the evidence and answers to questions in an effort to reach a verdict. Later that day, the jury returned a guilty verdict on the lesser included offense of attempted second degree murder and guilty verdicts on the other offenses as charged.

As previously described, the trial court found the convictions on counts 1 through 3 were also sufficient to enter a judgment of conviction (without a separate jury trial and verdict) on the bifurcated count charging possession of a firearm by a convicted felon.

At the sentencing hearing, the trial court stated:

So, as to the sentencing in Mr. Gonzalez, after reviewing the PSI, after hearing testimony from the victim and hearing arguments from both counsel, and Mr. Gonzalez, so you understand as well, there's clearly been no sign of remorse or concern for the victim . The victim has been put through multiple traumas

of coming to court, both for the probation violation, here today, and during trial. [Emphasis provided].

Gonzalez did not admit guilt and did not attempt to raise remorse as part of his allocution at sentencing. Immediately after the trial court's pronouncement, the prosecution requested a sidebar, and the following discussion transpired:

STATE: Your Honor, I'm just unclear with, like, basically your ruling. Your Honor can't consider his lack of remorse in determining your sentence.²

THE COURT: That's correct.

DEFENSE: You raised it as an issue specifically. You argued it in your sentencing, why the statement made by [the prosecution] is – the judge said what he said. You can't rule that out. This is the sentencing. So, I don't know why we're going to sidebar. This should be on the record.

STATE: It is on the record.

...

THE COURT: I mean, it is on the record. I was reiterating what the comments were and what goes into [what] was said today, but again, as I said, sentencing is based on the crimes that were committed, and it's a 40 year sentence.

Following the entry of the judgment of convictions and sentences, this appeal was timely filed.

Analysis

I. The Photographs of the Glove

Gonzalez first contends that it was error for the trial court to deny his motion in limine and to admit photographs of a glove found a week after the crime inside of a van that belonged to his sister. Gonzalez argues this evidence was more prejudicial than probative and there was no direct link to the charged offenses. At trial, the glove recovered from the van belonging to Gonzalez's sister took on significance. During closing arguments, defense counsel argued a lack of evidence, including an absence of DNA evidence at the crime scene. The prosecution tried to explain the lack of fingerprint and DNA evidence by pointing to the glove recovered from the van and suggesting that the perpetrators must have used a glove or gloves to assure that no such evidence would be left at the crime scene.

"The standard of review of a trial court's ruling on a motion in limine is abuse of discretion. Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an ‘erroneous view of the law or on a clearly erroneous...