Landeverde v. State

• Decision Date: 11 October 2000
• Docket Number: No. 4D99-1879.,4D99-1879.
• Citation: 769 So.2d 457
• Parties: Marshall Guadalupe LANDEVERDE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

769 So.2d 457

Marshall Guadalupe LANDEVERDE, Appellant, v. STATE of Florida, Appellee.

No. 4D99-1879.

District Court of Appeal of Florida, Fourth District.

October 11, 2000.

Rosemarie Richard of Richard & Richard, Attorneys At Law, P.A., Stuart, and Robert G. Udell, P.A., Stuart, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Marshall Landeverde appeals from his conviction of first degree murder and two counts of burglary of a dwelling. He raises three points of error: (1) denial of the motion to suppress his confession; (2) failure to give jury instructions on the independent act theory; and (3) refusal to compel the testimony of his co-defendants. After reviewing the record and carefully considering appellant's arguments on all of these issues, we conclude that the trial court committed no reversible error and affirm the judgments of conviction.

First, we find no error in the trial court's denial of appellant's motion to suppress his confession. The record supports the trial court's determination that appellant initiated conversation with the officer after invoking his rights and that his second statement was voluntary. Second, we determine that the trial court properly declined to give instructions on the independent act theory, because there was no evidence that the co-defendant who shot the victim acted independently from appellant. Rather, the evidence showed that the shooter acted in furtherance of the burglary and theft in which appellant participated. Third, we conclude that the trial court did not err in refusing to compel the co-defendants to testify at appellant's trial over the co-defendants' assertion of their Fifth Amendment privilege against self-incrimination. We discuss our resolution of this claim more fully below.

FACTUAL BACKGROUND

On January 13, 1998, appellant, Raymond Carver, Israel Cuevas, and Ronald Demedicus drove around looking for a vacant house to burglarize. They came upon the victim's house, which was in a secluded wooded area. They approached the house and knocked. After determining that no one was home, the men entered the house. They noticed black curtains covering the windows and, once inside, saw nothing but marijuana. The four men had unknowingly selected a marijuana growing house. They immediately began removing quantities of marijuana from the house.

The next day, on January 14, the men decided to break in again and steal more marijuana. However, finding that someone was home, they abandoned the plan. On January 15, appellant and Carver reentered the house. Appellant carried a knife; he knew that Carver was carrying a gun. Appellant remained downstairs cutting marijuana plants and stuffing them in bags while Carver went upstairs. While cutting the marijuana, appellant heard gunshots. Afraid that Carver had been shot, appellant called out to him. Appellant went upstairs and discovered that Carver had shot and stabbed the owner of the home, Christian Giotis. Appellant and Carver left the house with the marijuana and searched the victim's truck for other valuables.

Carver was indicted on a charge of first degree murder. He went to trial and was found guilty of first degree murder and sentenced to a term of life imprisonment. Demedicus was charged with murder and two counts of burglary. He pled no contest to manslaughter and burglary and received a twelve-year sentence. Cuevas was charged with second degree murder and two counts of burglary. Pursuant to a plea agreement, the state nolle prossed the murder count upon Cuevas' no contest plea to the burglaries. Cuevas was placed on two years of community control. Appellant was found guilty by a jury of first degree felony murder and two counts of burglary of a dwelling. He was sentenced to life in prison without parole.

At trial appellant attempted to call co-defendants Carver, Demedicus, and Cuevas as witnesses. Each prospective witness asserted his Fifth Amendment privilege against self-incrimination at a hearing held outside the presence of the jury. Appellant's trial counsel advised the co-defendants that he intended to ask them questions about the Giotis incident and any discussions between them prior to commission of the crimes. Based on his pending appeal, Carver invoked his Fifth Amendment privilege and refused to testify. Demedicus, who had cooperated with the state after entering his plea and filed a motion to modify his sentence, also asserted a Fifth Amendment privilege not to testify. Cuevas did not have any appeals or post-sentencing motions pending at the time of appellant's trial, but he nevertheless refused to testify on Fifth Amendment grounds. The trial court sustained all three co-defendants' invocation of the privilege and denied appellant's motion to hold them in contempt for refusing to testify. Appellant objected, contending that the court's ruling impaired his right under the Sixth Amendment to present witnesses in his defense and that this right overrode the co-defendants' claim of a Fifth Amendment privilege.

DISCUSSION

Testimony of Carver

Both parties agree that under Landenberger v. State, 519 So.2d 712 (Fla. 1st DCA 1988), the trial court properly denied appellant's motion to hold Carver in contempt. Landenberger held that "[i]n the absence of a promise of immunity, a convicted felon with an appeal pending has a Fifth Amendment privilege not to testify, and this privilege continues throughout the pendency of the appeal." Id. at 713 (emphasis supplied); see also King v. State, 353 So.2d 180 (Fla. 3d DCA 1977)

.

Testimony of Cuevas

Cuevas' assertion of a Fifth Amendment privilege is more problematic. Appellant's trial counsel objected to Cuevas' claim of a privilege, arguing that Cuevas had no reason to fear further prosecution in light of his prior plea and sentence. He urged the trial court to compel Cuevas to testify at appellant's trial.

A criminal defendant has the right to compulsory process to obtain the appearance of witnesses to testify on his behalf. This right is an essential attribute of our adversarial system and a fundamental element of due process of law. Taylor v. Illinois, 484 U.S. 400, 407-409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); State v. Reeves, 444 So.2d 20, 23 (Fla. 2d DCA 1983)(Sixth Amendment rights of confrontation and compulsory process are fundamental in nature and obligatory on the states under the due process clause of the Fourteenth Amendment). However, "when the Fifth Amendment guarantee collides with the Sixth Amendment ... the Sixth Amendment right must yield because to require one to incriminate himself in order to afford help to another would be both unwise and unrealistic." Walden v. State, 284 So.2d 440, 441 (Fla. 3d DCA 1973); Talavera v. State, 227 So.2d 493 (Fla. 2d DCA 1969), quashed in part on other grounds, 243 So.2d 595 (Fla.1971). See also Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)

(The power to compel testimony is subject to the exemption of testimony privileged under the Fifth Amendment); Hoffman v. United States, 341 U.S. 479, 490, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)(The evils of compulsory self-incrimination transcend any difficulties that exercise of the Fifth Amendment privilege may impose upon society in the prosecution and detection of crime); United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir.1990)(The conflict between a defendant's right to compel testimony and a witness' Fifth Amendment privilege has been resolved in favor of the latter). See also Brown v. State, 729 A.2d 259 (Del.1999).

In resolving the conflict between a defendant's right to compel testimony and a witness' Fifth Amendment privilege, the trial court must first determine whether the witness can validly assert a Fifth Amendment claim. In this regard, the trial court must evaluate whether a witness invoking a Fifth Amendment privilege "is confronted by substantial and `real,' and not merely trifling or imaginary hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). This is a question of law for the court to decide upon a voir dire examination. Talavera, 227 So.2d at 495-6 (footnotes omitted); ex rel. Feldman v. Kelly, 76 So.2d 798, 800 (Fla.1954)

.

Appellant argued that Cuevas had no justifiable fear of self-incrimination because he had already pled to his charges and been sentenced. Counsel for Cuevas countered that his trial testimony could possibly subject him to new criminal charges arising out of the incident. Additionally, he argued that Cuevas' testimony regarding his role in the crimes could result in a greater sentence if he were to violate his community control. If facts previously undisclosed during his plea proceeding were revealed at appellant's trial and then brought forth at his sentencing for revocation of community control, Cuevas could receive a prison term. After reviewing the recent holding of the United States Supreme Court in Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the trial court agreed that Cuevas could suffer adverse consequences as a result of being required to testify and sustained Cuevas' assertion of his Fifth Amendment privilege.

In Mitchell, the Supreme Court resolved the conflict among the federal circuits as to whether a guilty plea waives the privilege against self incrimination in the sentencing phase of a criminal case.¹ The Court held that the privilege does not end upon adjudication of guilt and continues until the sentence has been imposed. "It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege." Id. at 326. The Court concluded, however, that this principle applies "to cases in which the sentence has been fixed and the judgment of conviction has become final." Id. "If no adverse...