Jimenez v. State, 85014

• Decision Date: 30 October 1997
• Docket Number: No. 85014,85014
• Parties: 22 Fla. L. Weekly S685 Jose Antonio JIMENEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 437

703 So.2d 437

22 Fla. L. Weekly S685

Jose Antonio JIMENEZ, Appellant, v. STATE of Florida, Appellee.

No. 85014.

Supreme Court of Florida.

Oct. 30, 1997.

Rehearing Denied Dec. 29, 1997.

J. Rafael Rodriguez, Specially Appointed Public Defender of the Law Offices of J. Rafael Rodriguez, Miami, for Appellant.

Robert A. Butterworth, Attorney General and Fariba N. Komeily, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the convictions of burglary with an assault and battery in an occupied dwelling and first-degree murder and the sentence of death imposed upon Jose Antonio Jimenez. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On October 2, 1992, Jimenez beat and stabbed to death sixty-three-year-old Phyllis Minas in her home. During the attack her neighbors heard her cry, "Oh God! Oh my God!" and tried to enter her apartment through the unlocked front door. Jimenez slammed the door shut, locked the locks on the door, and fled the apartment by exiting onto the bedroom balcony, crossing over to a neighbor's balcony and then dropping to the ground. Rescue workers arrived several minutes after Jimenez inflicted the wounds, and Minas was still alive. After changing his clothes and cleaning himself up, Jimenez spoke to neighbors in the hallway and asked one of them if he could use her telephone to call a cab.

Jimenez's fingerprint matched the one lifted from the interior surface of the front door to Minas's apartment, and the police arrested him three days later at his parents' home in Miami Beach. In 1994, a jury found him guilty of first-degree murder and burglary of an occupied dwelling with an assault and battery and unanimously recommended the death sentence. The court followed the jury's recommendation, finding four aggravating circumstances, ¹ one statutory mitigating circumstance, ² and two nonstatutory mitigating circumstances. ³ Jimenez raises nine issues on appeal. ⁴

Jimenez first argues that the trial judge improperly denied his request to discharge his court-appointed second chair counsel, Andrew Kassier, and conducted an insufficient hearing on the matter. We disagree. First, a defendant has no right to co-counsel, ⁵ and second, a trial court must conduct an inquiry only if a defendant questions an attorney's competence. Smith v. State, 641 So.2d 1319, 1321 (Fla.1994); Watts v. State, 593 So.2d 198, 203 (Fla.1992). Jimenez requested that the court replace Kassier because he had a conflict with him, he could not reach him, and he did not know what was going on in his case. When the court inquired as to the nature of the conflict, Jimenez and Kassier declined to explain and lead counsel, Michael Matters, indicated that further inquiry would be fruitless. Under these circumstances, wherein Jimenez had no constitutional right to co-counsel, and he did not question Kassier's competence, we find no further inquiry was warranted. We also reject Jimenez's claim that the trial court should have informed him of his right to self-representation. If the court had discharged Kassier, Jimenez still would have been represented by lead counsel, Matters. Further, a request for self-representation must be stated unequivocally. Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988). Jimenez made no unequivocal request to represent himself, thus the trial court was not obliged to inform him of his right to self-representation. See Smith, 641 So.2d at 1321.

Jimenez next asserts that, even though he was present in the courtroom, it was error for him to be absent from two sidebar conferences during the jury selection process where the parties exercised cause challenges. We disagree. In Coney v. State, 653 So.2d 1009 (Fla.1995), we required the trial court to obtain from the defendant an on-the-record personal waiver of presence from the immediate site where pretrial juror challenges were being exercised, and we stated that the ruling was prospective only. ⁶ In State v. Mejia, 696 So.2d 339, 340 (Fla.1997), we ruled that Coney does not apply to trials that were conducted prior to April 27, 1995. ⁷ Thus, we find no error.

We also find no merit to Jimenez's claim that the trial court impermissibly restricted his right to cross-examination. Trial courts have wide latitude to impose reasonable limits on the scope of cross-examination. Jones v. State, 580 So.2d 143, 145 (Fla.1991). In Penn v. State, 574 So.2d 1079 (Fla.1991), we held that questions on cross examination must either relate to credibility or be germane to the matters brought out on direct examination. If the defendant seeks to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own. Stated more succinctly, this rule posits that the defendant may not use cross-examination as a vehicle for presenting defensive evidence.

Id. at 1082 (quoting Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982) (citations omitted)).

In the instant case, defense counsel attempted to cross-examine Detectives Pearce and Ojeda concerning the search of Jimenez's apartment and the particulars of the arrest warrant. Neither subject was raised by the State in its direct examination. The trial court sustained the State's objection and ruled that the questions concerning information furnished by others which formed the basis for the arrest warrant were not only beyond the scope of direct examination, but would elicit inadmissible hearsay. The trial court further ruled that the defense could call the two witnesses during its case in chief with respect to the matters it sought to elicit on cross-examination. We find no undue restriction on the development of Jimenez's defense, and thus no error.

Next, Jimenez contends that the trial court should have sought his personal waiver of the third-degree felony murder jury instruction pursuant to Harris v. State, 438 So.2d 787 (Fla.1983), Mack v. State, 537 So.2d 109 (Fla.1989), and Green v. State, 475 So.2d 235, 236 (Fla.1985). In Harris, we held that a defendant is entitled to have the jury instructed on all necessarily included lesser offenses, and the defendant must personally waive the right to these instructions. In Green, we held that third-degree felony murder is not a necessarily included offense of first-degree murder, but it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder requiring a jury instruction to that effect.

Jimenez concedes that third-degree felony murder is not a necessarily included lesser offense of first-degree murder, but claims that his waiver was required because third-degree felony murder, ⁸ a permissive lesser included offense, is supported by the evidence, ⁹ and Mack, which reaffirms the waiver requirement in Harris, does not distinguish between necessarily included and permissive lesser included offenses. We reject Jimenez's argument because our review of the record reveals that there is no evidence to support a third-degree felony murder conviction; thus, an instruction on that offense was not required. ¹⁰ We find no error.

Jimenez next claims that the evidence was insufficient to support his first-degree murder and burglary convictions. We disagree. The deliberate use of a knife to stab a victim multiple times in vital organs is evidence that can support a finding of premeditation. Preston v. State, 444 So.2d 939, 944 (Fla.1984). The record reflects that Minas was beaten and stabbed eight times. At least three stab wounds were to her chest cavity, one of which was four inches deep to her heart. This evidence supports a finding of premeditation.

Jimenez argues that the burglary was not proven because there was no proof of forced entry, or that Minas refused entry, or that she demanded that he leave the apartment. Section 810.02(1), Florida Statutes (1991), defines burglary as:

[E]ntering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

Neither forced entry nor entry without consent are requisite elements of the burglary statute. We recently addressed this issue in Robertson v. State, 699 So.2d 1343 (Fla. 1997):

From our reading of the record, Robertson met his initial burden of establishing that he entered Ms. Fuce's apartment with her consent. However, on this record a rational trier of fact could have found proof of withdrawal of consent beyond a reasonable doubt. There was ample circumstantial evidence from which the jury could conclude that the victim of this brutal strangulation-suffocation murder withdrew whatever consent she may have given Robertson to be in her apartment. The jury reasonably could have concluded that Ms. Fuce withdrew consent for Robertson to remain when he bound her, blindfolded her, and stuffed her brassiere down her throat with such force that according to the medical examiner she likely would have suffocated from the gag if she had not been strangled first.

Id. (citations omitted). In the instant case, we conclude that the trier of fact could reasonably have found proof of withdrawal of consent beyond a reasonable doubt. There is ample circumstantial evidence from which the jury could conclude that Minas withdrew whatever consent she may have given for him to remain when he brutally beat her and stabbed her multiple times in her neck, abdomen, side, and through her heart. We find sufficient evidence to support the burglary conviction and first-degree murder conviction based on premeditation or felony murder.

Jimenez next asserts that the evidence was circumstantial and did not exclude a reasonable hypothesis of innocence. We disagree. Jimenez's fingerprints were found on the inside of the front door. This is consistent with the neighbors' testimony that the door was...