Lara v. State, 62691

• Decision Date: 24 January 1985
• Docket Number: No. 62691,62691
• Citation: 464 So.2d 1173,10 Fla. L. Weekly 79
• Parties: 10 Fla. L. Weekly 79 Mario LARA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1173

464 So.2d 1173

10 Fla. L. Weekly 79

Mario LARA, Appellant, v. STATE of Florida, Appellee.

No. 62691.

Supreme Court of Florida.

Jan. 24, 1985.

Rehearing Denied April 4, 1985.

Adam H. Lawrence, Sp. Asst. Public Defender, Miami, for appellant.

Jim Smith, Atty. Gen. and Marti Rothenberg and Richard E. Doran, Asst. Attys. Gen., Miami, for appellee.

OVERTON, Justice.

The appellant, Mario Lara, was convicted of one count of first-degree murder, one count of second-degree murder, and one count of involuntary sexual battery. In accordance with the jury's sentence recommendation, the trial judge imposed the death sentence for the first-degree murder. In addition, she imposed two consecutive ninety-nine year sentences for the second-degree murder and sexual battery convictions. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm the convictions and sentences.

The relevant facts are as follows. On July 16, 1981, a Miami police officer was dispatched to meet Francisco Rizo at an apartment where Rizo had discovered the body of his girlfriend, Grisel Fumero. Rizo let the officer into the apartment and directed him to the kitchen where Fumero was lying face-down on the floor in a pool of blood. She had been shot four times. During the investigation of the crime scene, an upstairs tenant notified the police that there was another body in an upstairs bedroom. This body was identified as that of appellant's girlfriend, Olga Elviro. She had been bound and gagged and had been stabbed three times. Evidence introduced at trial indicated that Elviro had also been raped. A handgun found on the premises was determined to have been the weapon that fired at least one of the bullets into Fumero. The police also recovered a serrated knife which was tentatively identified as the weapon used to stab Elviro.

Evidence presented at trial established that, at the time of the homicides, appellant was awaiting trial on charges of robbery and voluntary and involuntary sexual battery. The sexual battery victim was Fumero's 13-year-old sister and Fumero was expected to testify against appellant at trial, which was to have begun the week of the homicides. There also was evidence that Elviro had learned of the charges against the appellant and had threatened to leave him. Further, on the day prior to the homicides, appellant had displayed two handguns and had threatened to kill Elviro and her sister-in-law, who had apparently told Elviro of the charges against appellant.

The evidence further established that, on the day of the homicides, appellant went to the upstairs apartment, woke Tomas Barcelo, and stated that he and Elviro needed to use the apartment. Barcelo left the apartment, went out into the yard, and, about half an hour later, saw appellant leave the apartment alone. Appellant next went to the downstairs apartment where he was admitted by Fumero. He went through the kitchen into his brother's bedroom in the same apartment. At this time Barcelo was in the kitchen at the request of Fumero. Appellant returned to the kitchen with his hands behind his back and told Fumero, "It's your fault that I have lost everything." He then pulled a gun from behind his back and shot Fumero in the stomach. She said, "Mario, Mario, why are you doing that to me?" Appellant replied, "Why am I doing that? Son of a bitch," and continued firing until the gun was empty. Appellant continued to pull the trigger after the gun was empty. Appellant's brother, Arsenio Lara, was in the room at this time and both he and Barcelo told appellant he was a murderer. Appellant retorted, "Oh, I'm a murderer," and, while laughing, started to reload the gun. Appellant's brother and Barcelo, believing they would also be killed, ran out of the apartment. Barcelo fled to New York and was not located until just before the trial. The brother, who was found with a blood-spattered watch in his possession, was originally charged with the murders, but was given immunity in exchange for testifying against appellant and the charges against him were dismissed. He subsequently refused to testify and was jailed for contempt. Rizo, who had notified the police of the murder and admitted them to the premises, became a fugitive and was not available at trial.

The appellant was arrested in New Jersey on July 21, 1981, on outstanding warrants for a robbery and sexual battery which occurred before these homicides. He waived extradition to Florida. An indictment was filed on November 17, 1981, charging appellant with two counts of premeditated murder and one count of involuntary sexual battery. The jury convicted appellant of the first-degree murder of Fumero and the second-degree murder and sexual battery of Elviro.

In the penalty phase, Lara presented the testimony of his aunt, Carmen Lara, who stated that appellant had been regularly beaten as a child by his father and, as a result of one of those beatings, had been hospitalized for a month. No testimonial evidence was presented by the state. The jury, by an eight-to-four vote, recommended the imposition of the death penalty for the murder of Fumero. Prior to the imposition of sentence, the trial court heard testimony from two additional defense witnesses, a psychiatrist and a long-time acquaintance of appellant, who testified concerning appellant's abusive childhood and its effect on his behavior.

The trial court concurred in the jury's advisory sentence and imposed the death penalty, finding three aggravating factors: (1) the appellant was previously convicted of second-degree murder and sexual battery; (2) the murder was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of law; and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The court found that no statutory or non-statutory mitigating factors existed.

Trial Phase.

Appellant challenges his conviction on twelve grounds. In his first contention, appellant claims that the trial court erred in denying his motion for discharge based on the alleged violation of the 180-day speedy trial provision of Florida Rule of Criminal Procedure 3.191. He argues that the speedy trial period for the homicides commenced either when he was arrested in New Jersey by the New Jersey police on July 21, 1981, or when he was arrested by Miami police in New Jersey on July 22, 1981, rather than when he was indicted for the murders on November 17, 1981. Evidence presented to the trial court during a two-day evidentiary hearing on this issue reflects that the Miami police sent a teletype to the New Jersey authorities that indicated there were outstanding Florida warrants for appellant's arrest for a robbery and an involuntary sexual battery that occurred prior to the homicides. The teletype also stated that appellant was wanted for questioning with reference to a homicide. New Jersey police testified that they arrested appellant as a fugitive on the outstanding warrants which were unrelated to the homicide incident. Although the police informed appellant at the time of his arrest that they were investigating the double homicide, they did not inform him that he was under arrest for the homicides. The trial judge found that the appellant was not arrested on the homicide charges until November 17, 1981; that appellant's arrest in New Jersey was pursuant to the two outstanding Florida fugitive arrest warrants; that the Miami police never told the New Jersey police any of the facts about the homicides; that no Florida warrants for the arrest of appellant for the homicides were outstanding at the time of his arrest in New Jersey; and that appellant was never told in New Jersey that he was being arrested for the homicides.

Appellant contends that, at the time of his arrest in New Jersey, the authorities possessed sufficient evidence to establish probable cause to arrest him for the homicides. He argues that our decision in Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980), controls by reason of the following language:

[T]he spirit of the Speedy Trial Rule would not condone the withholding of some charges and an arrest on others so as to effectively extend the time periods of the rule where there is ample evidence to support probable cause as to all charges....

374 So.2d at 513.

We disagree and find that our decision in Thomas supports the trial court's denial of the motion for discharge. In Thomas, the appellant was initially charged with receiving and concealing stolen property. The property in question had been stolen during a burglary/robbery in which the perpetrator had killed one victim and sexually assaulted another. During the search of appellant's house and car, and during subsequent interrogation, the police obtained evidence implicating appellant in the homicide and assault. He was not formally charged with these crimes, however, until almost one year later. We upheld the trial court's denial of the appellant's motion for discharge based on the alleged violation of the speedy trial rule, finding that the police did not have probable cause to arrest appellant for the homicide and assault at the time he was taken into custody for the stolen property offenses. 374 So.2d at 513-14. We recognized that the state could not purposefully delay filing charges so as to extend the time periods of the speedy trial rule, and concluded that the appellant had failed to establish any prosecutorial abuse with regard to the delayed filings in that case. Id. at 513.

Similarly, in the instant case, the appellant has failed to establish prosecutorial abuse. We note that, of the three critical witnesses in this cause, one was initially charged with the murder, one went into hiding and was not located until just before trial, and the other left and had not been located at the time of the trial....