Menendez v. State
| Decision Date | 25 January 1979 |
| Docket Number | No. 49294,49294 |
| Citation | 368 So.2d 1278 |
| Parties | Antonio MENENDEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
This case is here on direct appeal of a sentence of death imposed on Antonio Menendez by a trial judge, following an advisory sentence of death recommended by a jury. We have jurisdiction. 1
The following sequence of events led to Menendez's arrest and conviction. A customer walked into a jewelry store and saw a man emptying the store's safe. The man took a gun from his jacket and grabbed for the customer, but she eluded his grasp and ran out of the store. Soon thereafter the same man was seen by the customer and her husband leaving the store and speeding away in a red Camaro with New York license tags. Both the husband and wife later gave police similar descriptions of the man they had seen. A police officer soon arrived at the store and found the dead body of the jeweler.
At 2:30 a. m., the officer received word that a red Camaro had been seen at an apartment complex. He proceeded to the area and noted that although the car had a Florida license tag, it bore a New York inspection sticker. The officer the went into the complex and questioned the manager, who said that he thought the Camaro belonged to the resident of a particular apartment whose description matched that of the man seen at the jewelry store. The manager also stated that this resident had been seen transferring various goods from the trunk of the red Camaro to another vehicle earlier. The officer went to the door of the apartment, knocked, and announced both in English and Spanish that he was a police officer.
After about five minutes, during which time the officer heard shuffling and sounds of movement inside the apartment, the door was opened about two inches to reveal an individual holding a pistol in his hand. The officer immediately pushed the door fully open, upon which the person who had opened the door dropped the pistol. Across the room the officer saw another man who fit the suspect's description and numerous items of merchandise which later proved to have been taken from the jewelry store.
The officer arrested the persons in the apartment and confiscated both the weapons and merchandise. The man seated across the room was Menendez, who was later identified in a lineup at the police station by the woman who had witnessed the jewelry store robbery.
After a trial by jury, Menendez was convicted of robbing the jewelry store and murdering the store owner. He was sentenced to life imprisonment for the robbery and to death for the murder. In seeking to overturn his convictions and sentences, Menendez essentially argues three points:
1. That the contraband seized from the apartment should not have been admitted into evidence because it was obtained by means of an illegal search;
2. That he was prejudiced by a failure to sever his trial from that of the co-defendant; and
3. That his death sentence was improper even if his conviction was valid.
1. Search and seizure. The trial judge did not err in allowing the seized items to be admitted into evidence. There was absolutely nothing improper in the police officer's knocking on the door of Menedez's apartment and announcing himself, regardless of the time of day. When the officer saw that a person in the doorway held a gun, he acted most reasonably in attempting to protect himself by quickly pushing the door open to its full extent, especially in light of the information he already possessed, which suggested that the resident of the apartment may have committed murder. 2 With the door fully open, the contraband was lawfully within the officer's view, and it is immaterial that he could not have effected a valid arrest without a warrant at the time he first knocked at the apartment door. 3 Once the door was opened, there was probable cause to arrest the persons in the apartment without a warrant and to seize the contraband which was in plain view. 4
2. Severance. The trial judge exercised her discretion during the course of trial by refusing to sever Menendez's trial from that of the co-defendant. There was only one attempt to sever Menendez's and his co-defendant's trial, however. That occurred when the co-defendant's counsel announced in his opening statement that his defense would be designed to prove that Menendez, not the co-defendant, had committed the robbery and murder. 5 Menendez's counsel promptly moved for a mistrial and for severance. While both of these requests were denied, the trial judge nonetheless expressed her concern as to the direction of the joint trial, saying:
I am frank to say I am awfully worried about the way things are heading.
The trial court then expressly cautioned the jury to disregard the statement of counsel and to base their verdict solely on the evidence which would be produced during the course of trial.
During the evidentiary phase of the trial, counsel for the co-defendant offered no evidence to support his earlier assertion that Menendez had committed the crimes, and counsel for Menendez made no further request for severance. The only other reference to the co-defendant's reliance on Menendez's guilt came during closing argument by counsel for the co-defendant, when he argued that the evidence against Menendez was overwhelming and that "the opposite is true as to the co-defendant." Menendez was convicted of robbery and murder, but his co-defendant was acquitted of both.
The American Bar Association has promulgated standards with respect to joinder and severance dealing in a general way with the problem of severance which was raised in this case. 6 The thrust of the association's recommendation, which is completely consistent with our rule on severance, 7 is that severance should be granted liberally whenever potential prejudice is likely to arise in the course of trial. It is immaterial whether any of us might have granted a severance; the test is whether the trial judge abused her discretion at the time she made her ruling. 8
We have reviewed the entire record to determine whether the two statements of the co-defendant's counsel so prejudiced the determination of Menendez's innocence or guilt that the same jury might have reached a different result had the two statements not been made. It is impossible to conclude on this record that Menendez was prejudiced in the least. 9 The evidence is overwhelming that Menendez was the individual who had been present in the store at the time the shopkeeper was killed, was seen in the act of robbing the safe, and later emerged to flee in a red Camaro. While there was no evidence as to who may have fired the fatal shot, it was also undisputed that Menendez held a gun in his hand at the time he was seen in the store, at or near the time of death. His co-defendant was at no time linked to any of the events which transpired at the jewelry store. This, then, is not a case in which the conviction was based solely on circumstantial evidence or inconclusive evidence, or where there is any possibility of misidentification between two perpetrators. We conclude that the trial judge did not abuse her discretion in refusing to sever Menendez's trial from that of his co-defendant. 10
3. Death sentence. 11 The state has conceded that three of the seven aggravating circumstances found by the trial judge should not have been considered, since they are outside the list of factors enumerated in our death penalty statute. 12 These findings are stricken. 13 The state also agrees that a fourth aggravating circumstance found by the trial judge is properly consolidated with another. The only mitigating circumstance in the case is that Menendez had no significant history of prior criminal activity. 14
With the findings of the trial judge appropriately modified, the state still argues that the three aggravating circumstances outweigh the one mitigating circumstance and warrant our affirmance of the death sentence. The three aggravating factors, as stated by the trial judge, are:
1. That the death of Arturo Gargaro, age 69, occured (Sic ) while the defendant was engaged in the commission of a Robbery of Mr. Gargaro's jewelry store and that as such, the crime was for pecuniary gain. 15
2. That the crime was especially heinous, atrocious or cruel in that the placement of the fatal bullet indicates to the court that the arms of the victim were in a raised and submissive position at the time of the administration of the fatal shot. 16
4. That the Murder was committed for the purpose of eliminating the one eye-witness (Sic ) to the crime and thereby avoiding or preventing a lawful arrest. 17
It is clear that this murder was committed during the course of a robbery. It is not so clear that the murder was "especially" heinous, atrocious, or cruel, as is contemplated in the statute. The storekeeper was shot twice and died. Although his arms may have been in a submissive position at the time he was shot (a fact which is subject to other reasonable interpretations), there is nothing to set his execution murder "apart from the norm of capital felonies." 18
There is also considerable doubt that this murder was committed for the purpose of avoiding arrest within the contemplation of our statute. The state urges (with some logic) that any murder committed by means of a pistol fitted with a silencer indicates a motivation to avoid arrest and detection. The presumption accorded the instrument of murder by this reasoning, however, carries us too far. Were this argument accepted, then the perpetration of murder with a knife would similarly add an aggravating circumstance to the life-or-death equation, since it is less detectable than a firearm. This mechanical application of the statute would divert the life-and-death choice away from the nature of the defendant and the deed, as the statute seems to require. 19 In Riley v. State, 366 So.2d 19 (Fla.1978), we held that an intent...
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...the requisite intent to avoid arrest and detection must be very strong in these cases." (366 So.2d at p. 22.) Thus, in Menendez v. State (Fla.1979) 368 So.2d 1278, 1282, involving a store owner killed during a robbery, the court held that for the aggravating circumstance to apply, it must c......
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