Pagan v. State, No. SC06-378 (Fla. 10/1/2009)

Decision Date01 October 2009
Docket NumberNo. SC06-378,No. SC07-1327,SC06-378,SC07-1327
PartiesALEX PAGAN, Appellant, v. STATE OF FLORIDA, Appellee. ALEX PAGAN, Petitioner, v. WALTER A. MCNEIL, etc., Respondent.
CourtFlorida Supreme Court

Bill Jennings, Capital Collateral Regional Counsel, Robert T. Strain and Peter J. Cannon, Assistant CCR Counsel, Middle Region, Tampa, Florida, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Leslie T. Campbell, and Lisa-Marie Lerner, Assistant Attorneys General, West Palm Beach, Florida, for Appellee/Respondent.


Alex Pagan appeals an order of the trial court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the trial court's denial of postconviction relief and deny the petition for habeas relief.


Alex Pagan was convicted of two counts of first-degree murder in the 1993 deaths of six-year-old Michael Lynn and his father Freddy Jones, two counts of attempted murder of the child's mother Latasha Jones and the Joneses' eighteen-month-old son Lafayette Jones. Pagan was also convicted of armed robbery and armed burglary for breaking into the Joneses' Broward County home and taking their Jeep Cherokee. Pagan v. State, 830 So. 2d 792 (Fla. 2002).

Latasha Jones testified that two men1 entered the master bedroom of the Joneses' home in the early morning hours by crashing through the sliding glass doors. The two men demanded money from the couple. One of the intruders stated that he had messed up the "first time" and now wanted a large amount of cash that he believed was in the house. The intruders were wearing ski masks, but at one point Latasha was able to see one of the men whose mask was partially off. Latasha described him as "very bright skinned, looked like he was white" and as being "the calm one" of the two perpetrators. She described the other man as being hyper. Latasha also testified that "the calm one" tied up the couple and shot the victims.

Latasha testified that that the couple's house had been burglarized approximately one month earlier. Clothes, jewelry, and cash had been taken. Latasha identified some items of jewelry that were recovered from Pagan's residence after he was arrested for the murders. Other items of the Joneses' jewelry had been taken to two pawn shops by Graham.

Antonio Quezada and Keith Jackson, friends of the defendants Pagan and Graham, testified that they saw both men wearing the jewelry identified by Latasha as having been stolen in the first burglary. Quezada testified that Pagan told him "the next time they would do it right." Quezada also testified that he drove the defendants to the Joneses' home on the night of the murders and that Pagan stated that they would kill everybody. Pagan arrived at Quezada's apartment later that night and stated that he had killed everyone, including the children. He also admitted that he had stolen the Joneses' car and abandoned it at a supermarket.

Keith Jackson testified that Pagan admitted that he had committed the home invasion murders. Pagan also told Jackson that he had targeted the Joneses' home because Freddy Jones was a drug dealer and was reputed to have money in his home. Pagan admitted his participation in the first burglary and showed Jackson the gold jewelry he had taken. Pagan showed him the house he had burglarized and stated his intention to go back because he had not gotten all of the money that was supposed to be in the house. After the murders, Pagan admitted to Jackson that he had shot everyone in the house, had dismantled the gun and scattered it over Miami, and had shot the victims because he thought they had seen his face.

During the penalty phase, the State presented evidence of Pagan's prior criminal record, which included a sexual assault and two aggravated batteries. Pagan's mitigation witnesses included family members and friends who testified about his childhood and upbringing, a records supervisor with the Broward County Sheriff's Office who testified about his exemplary prison record, and an attorney who testified about his cooperation in his defense. The jury recommended a death sentence by a vote of seven to five.

At the Spencer hearing,2 a forensic psychologist testified that Pagan has a borderline personality disorder and suffered from attention deficit disorder as a child. The State presented another forensic psychologist who disputed both findings. The defense also presented testimony from other family members and friends about Pagan's family relationships.

The trial court followed the jury's recommendation and imposed death sentences for each murder. The trial court found three aggravating circumstances: Pagan had a prior violent felony conviction; the murders were committed during the course of a felony; and the murders were committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The court found as a statutory mitigating circumstance, under the catch-all provision of "any other factors," that Pagan had a deprived childhood based on his father's abandonment of the family when he was two years old and his mother's having to raise two small children on her own. The trial court also found several nonstatutory mitigating circumstances, including that Pagan suffered from attention deficit disorder, had a borderline personality disorder, was a loving brother, was a loving grandson and great-grandson, was a loving friend, and displayed good conduct while in custody.

On appeal, Pagan raised seventeen claims.3 This Court found all but one of Pagan's claims of error to be meritless, not properly preserved for appeal, or not argued with specificity. The only error found by this Court (the prosecutor's reference to "Desert Storm" without a factual basis in the evidence) was deemed harmless. Pagan, 830 So. 2d at 813. We affirmed Pagan's convictions and sentences. Id. at 817. The United States Supreme Court subsequently denied Pagan's petition for writ of certiorari. See Pagan v. State, 539 U.S. 919 (2003).

Pagan filed a postconviction motion in June 2004, raising twenty-one claims. In January 2005, the trial court issued an order granting Pagan an evidentiary hearing on four of his claims.4 The trial court denied all relief in February 2006.

Pagan has appealed the denial of postconviction relief to this Court, raising nine issues. Pagan asserts that (1) the State committed a Brady5 violation by suppressing evidence in a police report about the identity of an alternate suspect; (2) defense counsel provided ineffective assistance by failing to ensure that Pagan received a proper mental health examination, to conduct a proper investigation of mitigation, and to present mitigation evidence properly; (3) defense counsel provided ineffective assistance by failing to call witnesses who could mitigate the facts underlying the prior violent felony aggravator; (4) the trial court erred in summarily denying a Brady claim relating to Keith Jackson's plea in a different case; (5) the trial court erred in summarily denying a Giglio6 claim relating to Keith Jackson's testimony about charges against him in Dade County; (6) the trial court erred in summarily denying a claim of ineffective assistance of counsel relating to Wanda Jackson's testimony; (7) the trial court erred in summarily denying claims of confrontation violations and prosecutorial misconduct relating to the testimony of Keith Jackson and Wanda Jackson; (8) the trial court erred in summarily denying a claim of ineffective assistance of counsel regarding the cross-examination of Detective Ron Peluso; and (9) the trial court erred in summarily denying a claim of ineffective assistance of counsel regarding the cross-examination of Keith Jackson. Pagan has also filed a petition for writ of habeas corpus, raising two issues. He claims that (1) he was denied equal protection when prospective jurors were struck from his jury because English was not their primary language; and (2) he was denied a reliable sentence and verdict because the jury's role was diminished in violation of Caldwell v. Mississippi.7 We address Pagan's claims in turn below.


The first three claims that Pagan raises in his postconviction appeal were the subject of a three-day evidentiary hearing by the trial court in February 2005.8 At the hearing, Pagan presented testimony from his guilt phase attorney Dennis Colleran, his penalty-phase attorney Kenneth Malnik, his friend Philip Howard regarding the facts underlying the prior felony conviction aggravator, his grandmother Viola Miranda and his father Miguel Pagan about his childhood and family relationships, and clinical psychologists Henry Dee and Mark Cunningham.

Brady Violation

Pagan claims that the State committed a Brady violation by suppressing the identity of an alternate suspect referred to in a police report. The trial court denied relief on this claim, finding that this alleged Brady evidence was available to Pagan prior to and at the time of trial. The court noted that defense counsel had used the identity "mix up" in a motion to suppress, in a motion for new trial, and in argument to the jury. Thus, the court concluded, there was no Brady violation. The trial court further concluded that even if this was Brady material, it would not have undermined confidence in the outcome of Pagan's trial proceedings.

Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the State is required to disclose material information within its possession or control that is favorable to the defense. See Mordenti v....

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