Ponticelli v. State, 73064

• Decision Date: 10 October 1991
• Docket Number: No. 73064,73064
• Parties: 16 Fla. L. Weekly S669, 17 Fla. L. Weekly S169 Anthony John PONTICELLI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 483

593 So.2d 483

16 Fla. L. Weekly S669, 17 Fla. L. Weekly S169

Anthony John PONTICELLI, Appellant, v. STATE of Florida, Appellee.

No. 73064.

Supreme Court of Florida.

Oct. 10, 1991.

Rehearing Denied March 9, 1992.

James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Anthony J. Ponticelli appeals his convictions of first-degree murder and sentences of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentences.

According to testimony at trial, on November 27, 1987, Ponticelli was invited to watch video movies at the home of Keith Dotson, whom Ponticelli met while at a convenience store that afternoon. Ponticelli arrived at Dotson's house between 6:30 and 7:00 p.m. and stayed thirty to forty-five minutes. Later that evening he returned to Dotson's house in an automobile. Upon his return, Ponticelli told Dotson's cousin, Ed Brown, that there were two people in the car whom he intended to kill for money and cocaine. Ponticelli showed Brown a gun and told him he would need a ride back to his house. Brown agreed to give him a ride and gave Ponticelli Dotson's telephone number. When the phone later rang several times, Dotson and his friends intentionally did not answer it. Around 11:30 p.m., Ponticelli returned to Dotson's house in a taxi cab. He told those present that he had killed the two people in the car for cocaine and $2,000. Ponticelli asked Brown if he thought that a person would live after being shot in the head. Although Brown told him he did not think he had to worry about it, Ponticelli expressed concern, telling Brown that he had heard one of his victims moaning. After Ponticelli washed his clothes to remove blood stains, Brown drove him home.

According to testimony of Timothy Keese, who lived with Ralph and Nick Grandinetti, on the evening of November 27, Keese saw Ponticelli at the Grandinetti brothers' home around 7:30 p.m. The three were discussing money Ponticelli owed the brothers for cocaine he had purchased from Ralph. Ponticelli told the brothers that he would sell whatever cocaine they had and then settle up with them. The brothers agreed to take Ponticelli to sell the cocaine. Keese left the house; and when he returned around 10:00 p.m. the Grandinettis were not at home. The brothers did not return that night.

The Grandinettis were found in their car the following day. Nick was found badly injured with his head on the floorboard of the car. He was gasping for air and kicking his foot when found. Nick's head was covered with blood and there was blood spattered all over the car. Ralph was found dead in the back seat. According to the medical examiner, Ralph died within one to two minutes of being shot once in the back of the head at close range.

Nick Grandinetti survived until December 12, 1987. An autopsy revealed that he had suffered two gunshot wounds to the back of the head. There were a number of bruises on the back and side of his head that were consistent with blunt trauma to the head. The skin on the right ear was peeling and red which was consistent with Ponticelli's best friend, Joseph Leonard, testified that around 9:30 p.m. on November 27, Ponticelli came to Leonard's house and returned a gun Leonard had given him. Ponticelli told Leonard that he "did Nick" which Leonard understood to mean that Ponticelli had shot and killed Nick Grandinetti. Ponticelli asked Leonard and his roommate what he should do with the bodies.

hot pressure being placed on the ear for an extended period of time. Nick died of cardiac arrest which was secondary to the gunshot wounds.

Leonard further testified that the next day Ponticelli told him that the Grandinettis had been harassing him about money that he owed them and were not going to let him leave their house until they got their money. The three left in a car. Ponticelli directed the brothers around the back roads trying to sell their cocaine. He then shot them both in the head. After dropping the gun off at Leonard's house, he had a flat tire so he left the bodies and took a cab home. Leonard eventually gave the police the murder weapon and a statement. After the murder weapon was given to police and statements from Leonard and his roommate were taken, Ponticelli was arrested.

There was also testimony that on the Sunday after the shootings, Ponticelli burned some clothes in Ronald Halsey's back yard. When asked why he was burning the clothes, Ponticelli told Halsey that he had shot two men whom he owed money for cocaine. He told Halsey that he shot both of the men in the back of the head and threw one of them in the back seat. The other man was still moving so he hit him a couple of times in the head with the butt of the gun. He parked the car when he had a flat tire and took several grams of cocaine and $900 in cash.

After his arrest for the murders, Ponticelli discussed the murders with a cellmate, Dennis Freeman, who testified at trial. According to Freeman, Ponticelli asked him if he would help him dispose of some evidence and drew Freeman a map showing the location of the evidence. The map had Keith Dotson's name and telephone number on it. Ponticelli told Freeman that he made several phone calls from the victims' house to get them to believe that he was trying to sell cocaine for them. He thought about killing the brothers at their home but there were other people there, so he asked the brothers to take him to Keith Dotson's house to sell the cocaine. After leaving Dotson's house, they drove to a place where he killed them. Ponticelli told Freeman that he shot the driver first with two shots to the head and then shot the passenger once in the head. One of the men was still alive. Ponticelli then drove to Joey Leonard's house, where he told Leonard and his roommate what he had done. He gave Leonard the gun and discussed disposing of the bodies. After he left Leonard's house, he had a flat tire, so he abandoned the car. He took a cab to Dotson's house where he washed his clothes which he later burned. Ponticelli told Freeman that he shot the brothers because he wanted to rob them of cocaine and money.

Ponticelli was charged with two counts of first-degree murder and one count of robbery with a deadly weapon. At the close of the state's case-in-chief, a judgment of acquittal was entered as to the robbery charge. The jury found Ponticelli guilty of both counts of first-degree murder and recommended that he be sentenced to death for each murder. The trial court sentenced Ponticelli to death in connection with both convictions. The court found two aggravating factors ¹ applicable to both murders and a third factor ² applicable to the murder of Nick Grandinetti and two mitigating factors in connection with both murders. ³

Ponticelli raises the following twelve claims in this appeal: 1) the trial court erred in finding appellant competent to stand trial; 2) the trial court erred in denying appellant's motion to suppress statements made to investigators; 3) the trial court erred in preventing appellant from presenting the testimony of an expert in the field of behavioral psychology; 4) the trial court erred in limiting the defense's voir dire examination; 5) the trial court erred by refusing to grant a mistrial after a state witness was allowed to testify regarding the potential danger he faced as a result of his testimony where such danger was never connected to the defendant; 6) the trial court erred by admitting a photograph of the victim which was cumulative to photographs already in evidence and allowing extended publication of photographs to the jury; 7) the trial court erred in permitting the state to elicit irrelevant and prejudicial testimony during the penalty phase; 8) the trial court erred in finding the murder of Nick Grandinetti heinous, atrocious or cruel, under section 921.141(5)(h), Florida Statutes (1987); 9) the trial court erred in finding the murders were committed in a cold, calculated and premeditated manner, under 921.141(5)(i); 10) sections 921.141(5)(h) and (i) are unconstitutionally vague and applied in an arbitrary and capricious manner; 11) the trial court erred in its consideration of valid unrebutted mitigating factors; 12) Florida's capital sentencing statute is unconstitutional on its face and as applied. Only seven of these claims merit discussion. ⁴

GUILT PHASE

Ponticelli first claims that the trial court erred in finding him competent to stand trial because one of the three experts appointed to examine him testified that in his opinion Ponticelli was incompetent. Although Dr. Mills testified that Ponticelli was not competent to stand trial because he suffered from delusional thought processes, both Dr. Poetter and Dr. Krop testified that he was competent.

It is incumbent upon the trial court, as finder of fact in competency proceedings, to consider all the evidence presented and to render a decision based on that evidence. Carter v. State, 576 So.2d 1291 (Fla.1989), cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). However, where there is conflicting expert testimony on competency, it is the court's responsibility to resolve the disputed factual issue. Fowler v. State, 255 So.2d 513, 514 (Fla.1971); King v. State, 387 So.2d 463 (Fla. 1st DCA 1980). Absent a showing of abuse of discretion, the decision of the trial court on such matters will be upheld. 576 So.2d at 1292. The record contains sufficient evidence that Ponticelli understood the charges against him and could assist in his defense to support the trial court's ruling.

Next, we address Ponticelli's claim that statements made to Investigator Munster should have been suppressed because they were taken in violation of his fifth and sixth amendment rights. Prior...