Penalver v. State
| Citation | 926 So.2d 1118 |
| Decision Date | 02 February 2006 |
| Docket Number | No. SC00-01602.,SC00-01602. |
| Parties | Seth PENALVER, Appellant, v. STATE of Florida, Appellee. |
| Court | United States State Supreme Court of Florida |
Carey Haughwout, Public Defender and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Appellee.
We have on appeal the judgments and sentences of the trial court finding Seth Penalver guilty of three counts of first-degree murder and imposing sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we reverse and remand for a new trial.
On Sunday, June 26, 1994, a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay. The car was registered to Casmir Sucharski.1 The officer who discovered the car notified the Miramar Police Department, and a Miramar police officer went to Sucharski's home to tell him that his car had been discovered. The officer knocked on the door and received no answer. The officer saw nothing unusual. He stuck his card in the door and left.
Meanwhile, early on the morning of June 27, 1994, Margaret Edwards contacted the Broward County Sheriff's Department and reported her daughter, Marie Rogers, as a missing person. Edwards said her daughter went to a nightclub called Casey's Nickelodeon on Saturday night, June 25, with a friend, Sharon Anderson, and had not returned home. Casmir Sucharski owned the nightclub. Deputy Christopher Schaub went to the nightclub and learned that Sucharski left the club early Sunday morning, June 26, with Rogers and Anderson. Deputy Schaub drove by Sucharski's residence around 2:06 a.m. on Monday. Anderson's car was in the driveway, but no one answered the door. Deputy Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch. He peered inside, saw three bodies, gained access to the house, and called for backup. The police identified the individuals found at the residence as Sucharski, Anderson, and Rogers. All three victims had died of gunshot wounds. The murders were captured by a video surveillance camera which had been installed in Sucharski's residence a week before the murders. The videotape revealed that on Sunday, June 26, 1994, at 7:18 a.m., two men entered through the back sliding door of Sucharski's home. One of the intruders had something covering his face and head, and the other intruder wore a baseball cap and sunglasses. The intruder with the cap and sunglasses moved throughout the residence while the other intruder stayed with the victims. Sucharski was hit in the face with a Tec-9 gun, knocked to the floor, and beaten on his neck, face, and body by the intruder in the sunglasses and baseball cap. Sucharski was beaten for nearly twenty-two minutes. The intruder with the face covering, later identified as Pablo Ibar, shot Anderson, Rogers, and Sucharski in the back of the head, after which the other intruder shot Anderson and Sucharski in the back.
The police took frames from the videotape and produced a flyer that was sent to law enforcement agencies. Three weeks after the murder, the police received a call from the Metro-Dade Police Department that it had an individual in custody who resembled an individual on the flyer. That individual was Pablo Ibar. Penalver was identified by his friend, Jean Klimeczko,2 as the other intruder involved in the murder. Subsequently, Melissa Munroe, Ian Milman, and Kimberly San, each of whom were acquainted with Penalver and Ibar, also identified Penalver as the other intruder on the videotape.
On August 25, 1994, Penalver and Ibar were each charged with three counts of first-degree murder, one count of burglary, one count of robbery, and one count of attempted robbery. The first jury trial ended in mistrial due to a hung jury. The second jury trial ended with Penalver being found guilty on all charges.
After a penalty phase proceeding, the jury recommended death by a unanimous vote, and the trial court imposed a death sentence after finding the following statutory aggravators: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; (2) the capital felony was committed while the defendant was engaged in the commission of a robbery or burglary; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the capital felony was especially heinous, atrocious, or cruel (HAC); and (5) the capital felony was committed in a cold, calculated, and premeditated (CCP) manner without any pretense of moral or legal justification. Although the court found that the aggravating factor that the capital felony was committed for pecuniary gain was proven beyond a reasonable doubt, the court's finding that the capital felony was committed while the defendant was engaged in the commission of a robbery or burglary precluded it from considering this factor as it would constitute doubling of the aggravating factors.
Penalver's counsel argued for and requested that the trial court consider numerous mitigating factors, including: (1) Penalver's troubled personal history, which included his failure to thrive, drug addiction at birth, mental illness, status as a special education pupil, learning disabilities, marginal intelligence, susceptibility to bad advice from peers, personality disorders, isolation, psychological stress, emotional instability, social alienation as a child, impoverished background, cultural deprivation, denial of emotional responsiveness, drug abuse and addiction, and alcohol abuse and addiction; and Penalver's family background which included the failure of his caretakers to provide for him, medical, mental health and educational neglect, exploitation by his parents, psychological maltreatment, rejection and degradation by his parents, and a history of institutionalization of family members; (2) he was twenty-one years old at the time of the crime; (3) he was an accomplice in the crime and his participation was relatively minor; (4) he has demonstrated a good attitude and demeanor over the past six years in custody; (5) he voluntarily turned himself in to the police after he was made aware that a warrant had been issued for his arrest; (6) he was under the influence of alcohol at the time of the homicides; (7) he has performed good deeds and exhibited good personality characteristics; and (8) he has unwaveringly declared his innocence. Although Penalver refused to allow this evidence to be presented to the jury, the trial court considered whether any of the evidence at trial supported these areas of mitigation. The trial court found one statutory mitigating factor: Penalver's age at the time of the offenses was twenty-one. The court gave this factor little weight. Additionally, the trial court found and weighed four nonstatutory mitigating factors: (1) the defendant's good attitude and demeanor as demonstrated over the past six years in custody; (2) the defendant voluntarily turned himself in to the police; (3) the defendant's use of alcohol on the day of the offense; and (4) the defendant's good deeds to others. However, the trial court determined that these factors did not outweigh the aggravating circumstances, and the trial court sentenced Penalver to death on the three counts of first-degree murder, to life in prison for burglary and robbery, and to fifteen years for attempted robbery.
Penalver raises twenty-two issues on appeal: (1) whether the introduction of an out-of-court statement as proof of subsequent conduct under section 90.803(3)(a)(2), Florida Statutes (1999), denied Penalver his right to confrontation, due process, and a fair trial under the Florida and United States Constitutions; (2) whether the trial court erred in admitting irrelevant evidence that Melissa Munroe had conversations with Penalver's attorney; (3) whether the trial court erred in admitting irrelevant jail records; (4) whether the trial court erred in allowing Detective Paul Manzella to testify that he did not believe what Ibar told him about where he was at the time of the murders; (5) whether the trial court erred in permitting Detective Manzella to describe specific consistent facts that Jean Klimeczko and Ian Milman had told him; (6) whether the trial court erred in admitting evidence that Penalver's refusal to relinquish his shoes to the police was evidence of his consciousness of guilt; (7) whether the trial court erred in admitting statements from Penalver to Melissa Munroe as evidence of consciousness of guilt; (8) whether the trial court erred in allowing a State witness to give opinion testimony beyond his expertise; (9) whether Penalver was denied due process and a fair trial due to prosecutorial misconduct; (10) whether the trial court erred in admitting hearsay statements of Jean Klimeczko as to what allegedly occurred on the weekend of the killings; (11) whether the trial court erred in admitting hearsay opinions of Melissa Munroe and Jean Klimeczko that Penalver was the person in the photo taken from the videotape of the murder; (12) whether the trial court erred in prohibiting Penalver from introducing to the jury a taped conversation between Casmir Sucharski and his ex-girl-friend, Kristal Fisher; (13) whether the trial court erred in admitting hearsay statements from Jean Klimeczko over Penalver's objection; (14) whether the evidence was insufficient for conviction when the only evidence of guilt was the out-of-court statements; (15) whether the trial court erred in overruling Penalver's hearsay objection to out-of-court statements by Kimberly San tha...
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