Hernandez v. State

• Decision Date: 04 March 2011
• Docket Number: No. SC08–2321.,SC08–2321.
• Citation: 56 So.3d 752
• Parties: Santo HERNANDEZ, Petitioner,v.STATE of Florida, Respondent.
• Court: Florida Supreme Court

56 So.3d 752

Santo HERNANDEZ, Petitioner,

v.STATE of Florida, Respondent.

No. SC08–2321.

Supreme Court of Florida.

Dec. 9, 2010.Rehearing Denied March 4, 2011.

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Timothy R.M. Thomas, Assistant Attorneys General, Miami, FL, for Respondent.QUINCE, J.

We have for review the decision of the Third District Court of Appeal in Hernandez v. State, 994 So.2d 488 (Fla. 3d DCA 2008). Petitioner Santo Hernandez argues that the evidence presented at trial was insufficient to prove that he was engaged in the trafficking or attempted trafficking of cocaine where the State failed to present evidence of the quantity of drugs involved in the alleged transaction. Hernandez contends that, in upholding his conviction, the Third District is in express and direct conflict with the decision of the First District Court of Appeal in Williams v. State, 592 So.2d 737 (Fla. 1st DCA 1992), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we vacate Hernandez's convictions for first-degree felony murder and remand to the district court with instructions to direct the entry of judgments for third-degree felony murder.

FACTS AND PROCEDURAL HISTORY

Hernandez was charged by indictment in February 2003 with two counts of first-degree felony murder in the deaths of victims George Collazo and Michel Aleman. The indictment alleged that on December 12, 2002, the victims were killed while Hernandez was engaged in the perpetration of, or the attempt to perpetrate, the felony offense of trafficking in cocaine, in violation of section 893.135(1), Florida Statutes (2002). See § 782.04(1)(a) 2., Fla. Stat. (2002) (providing that an unlawful killing committed during the perpetration or attempt to perpetrate a trafficking offense under section 893.135(1) is punishable as murder in the first degree). The indictment also charged Hernandez as a principal in the first degree, see § 777.011, Fla. Stat. (2002), making him liable for any actions of his coperpetrator. See generally Hodge v. State, 970 So.2d 923, 927 (Fla. 4th DCA 2008) (explaining that the focus in a felony murder charge is not on the accused's role in the actual killing, but on his or her participation in the underlying felony). After a three-day jury trial ending on January 12, 2007, Hernandez was found guilty of two counts of first-degree felony murder without personal possession of a firearm.

The evidence at trial demonstrated that on December 12, 2002, officers of the Hialeah Police Department responded to a call alerting them to a burning truck containing two bodies in the rear cargo area. The bodies themselves were partially burned and each body was partially wrapped in a comforter. Identification was found on both corpses, indicating that the men were Michel Aleman and George Collazo. The victims' identities were later confirmed by dental records. A medical examiner testified that the victims had died as a result of gunshot wounds and that the burning had occurred after death.

Detectives obtained Collazo's phone records and learned that numerous phone calls had been exchanged between Collazo and a cellular phone belonging to Hernandez between 8:54 a.m. and 11:56 a.m. on the morning of December 12. Based on the phone records, the police were able to link Hernandez to the residence of Vicky Rodriguez. Rodriguez was asked to come to the police station. There, she informed officers that she and Hernandez were in a romantic relationship and that Hernandez had been living at her home for several months. She told the officers that on December 12, Hernandez had called to tell her that he had broken a sliding glass door by falling through it. She became suspicious when Hernandez told her that he was not injured. When she arrived home and discovered a bullet hole in her front door as well as the broken sliding glass door, Hernandez first told her that there had been a drive-by shooting earlier in the day. When she did not believe him, he told her that he had accidentally fired a gun in the house. She then asked Hernandez to move out. She also told the officers that two comforters were missing from her bedrooms. After Rodriguez was shown photographs depicting the comforters in which the victims had been wrapped, she identified them as the ones missing from her home.

When Rodriguez later testified at trial, she also stated that shortly after Hernandez moved out, he asked her to bring him a white box he had left in the house. Rodriguez opened the package and found a substance that appeared to be cocaine. However, she determined that the cocaine was not real and subsequently disposed of it by flushing it down the toilet. On cross-examination, she stated that she tasted the powder and was able to determine based on prior experience that it was not real cocaine. She informed Hernandez that she destroyed the substance, but testified that he did not seem concerned.

Hernandez was taken into custody on January 25, 2003. He subsequently gave a taped statement, which was played for the jury at trial. In Hernandez's account of the events leading up to the victims' deaths, Hernandez was asked by Collazo, a childhood friend, whether he knew anyone who might be interested in purchasing cocaine. Hernandez suggested the name of codefendant Ricky Valle. Hernandez subsequently agreed to allow the deal to occur at his girlfriend's townhome. Although Hernandez stated that he was “like the middleman” in the transaction, he denied having been promised any specific compensation. Hernandez admitted, however, that Collazo had indicated that he would receive some money. When asked during the interrogation whether he was aware of how much money Valle was going to pay for the cocaine, Hernandez responded: “If I'm mistaken [sic] it was thirty thousand dollars.”

On the morning of the intended transaction, Hernandez exchanged phone calls with Collazo and Valle. Hernandez assured both men that “everything [was] okay.” Hernandez stated that he was alone in the townhome when Valle arrived carrying a bag, although Hernandez claimed that he never saw its contents. Valle immediately went upstairs. Hernandez told the interrogating officer that he was in the kitchen when Collazo and Aleman arrived a few moments later. Collazo was talking on a cell phone and carrying a box approximately two to three feet in height. As Collazo and Aleman entered the house, Valle, wearing gloves and carrying a long-barreled gun, came down the stairs and shot both men in the back. Hernandez recalled hearing the sliding glass door behind him shatter. According to Hernandez, Valle then threatened his life and the life of his family if he did not help clean up the bodies. Hernandez helped Valle mop up the blood and at least one spent bullet casing and helped Valle wrap the bodies in comforters that Valle had retrieved from upstairs. Hernandez told Valle that he had to deliver a suitcase to his girlfriend, Rodriguez, who was in beauty school. Valle accompanied Hernandez to deliver the suitcase. When they returned to the house, Hernandez cleaned up the broken glass in the kitchen. Hernandez then helped Valle load the bodies into a truck, which Valle drove away.

Hernandez was also asked about the box that Rodriguez had found in the townhome. Hernandez told the interrogating officer that the box contained fake cocaine that had been given to him by Collazo long before the planned drug transaction with Valle. Collazo did not tell Hernandez why he wanted him to keep it, but Hernandez said he held on to it as a favor to Collazo. When Rodriguez found the box after Hernandez moved out, Hernandez said, he told her to flush it down the toilet because it was “no good.”

One other account of the events surrounding the murders was presented at trial. According to Cesar Morales, a jailhouse informant, Hernandez told him that he had contacted Collazo and Aleman offering to sell them cocaine. In this account, Hernandez had manufactured ten kilos of false cocaine, which he intended to sell to Collazo for $220,000 to $230,000. After Collazo and Aleman arrived at the townhome, with Valle also present, Hernandez gave a sample of the cocaine to Collazo, then went upstairs to get a gun. After Collazo discovered that the cocaine was fake, Hernandez came downstairs and shot both victims. Hernandez then threatened to kill Valle, who helped him wrap the bodies and clean the house. Finally, Hernandez and Valle loaded the bodies into a truck, which Hernandez drove away. According to Morales, Hernandez told him that he would blame Valle for the murders.¹

After the State rested, the defense moved for a judgment of acquittal on both counts of felony murder. The defense argued in part that the evidence was insufficient to establish the underlying felony of trafficking in cocaine. Because the State had not submitted any direct evidence that the transaction involved at least 28 grams of cocaine, the defense argued, the defendant could not be found guilty of the felony of trafficking and thus could not be convicted of felony murder. The defense noted that the only testimony involving weight came from Morales, who testified that Hernandez intended to sell ten kilograms of “fake” cocaine. This, in the view of the defense, was insufficient to establish the defendant's intent to engage in felony trafficking. The court denied the motion. At the end of trial, the jury found Hernandez guilty of two counts of first-degree felony murder without personal possession of a firearm.

Subsequently, Hernandez appealed his conviction to the Third District Court of Appeal, renewing his argument that the evidence was insufficient to establish the predicate offense of trafficking or attempted trafficking in cocaine....