Romani v. State

• Decision Date: 24 May 1988
• Docket Number: No. 83-787,83-787
• Citation: 13 Fla. L. Weekly 1259,528 So.2d 15
• Parties: 13 Fla. L. Weekly 1259 Olga ROMANI, M.D., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 15

528 So.2d 15

13 Fla. L. Weekly 1259

Olga ROMANI, M.D., Appellant, v. The STATE of Florida, Appellee.

No. 83-787.

District Court of Appeal of Florida Third District.

May 24, 1988.

Rehearing Denied July 26, 1988.

Bradley R. Stark, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before HENDRY, HUBBART and FERGUSON, JJ.

HENDRY, Judge.

Defendant, Dr. Olga Romani, was charged with conspiracy to commit first degree murder and the first degree murder of Dr. Gerardo DeMola. Dr. DeMola was killed on February 18, 1981 in the parking lot of a hospital where he worked. At Dr. Romani's trial the state presented the occasionally conflicting testimony of several unindicted coconspirators and codefendants. ¹ They described a scheme involving numerous characters who allegedly, acting at Romani's behest, entered into a series of contracts and subcontracts to murder Dr. DeMola. The jury found defendant guilty on both counts. She was sentenced to life imprisonment on the first degree murder count and thirty years imprisonment on the conspiracy count. Romani appealed.

In her appeal Romani contends the trial judge made erroneous evidentiary rulings. Specifically, she claims the trial judge wrongfully admitted: (1) the hearsay statements of coconspirators without establishing by a preponderance of independent evidence the existence of a conspiracy and defendant's participation in the conspiracy; (2) coconspirator statements which were not made during the course, and in furtherance of the conspiracy; (3) statements made by nontestifying coconspirators which incriminated defendant without affording her an opportunity to cross-examine the declarants as provided by the sixth amendment and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We reject all of defendant's arguments and affirm the convictions.

According to testimony offered by the state's first witness, Romani's employee, Hortensia Mercedes Alvarez, Romani approached Alvarez and asked if she knew of anyone who could "get rid of these people," handing Alvarez a paper with the names of several individuals, among them Dr. DeMola. ² Alvarez claimed Julio Garcia, another employee of Romani's, was present during this conversation. Garcia denied hearing this initial conversation, but did testify Romani also asked him if he knew of anyone who would commit a murder for money. Alvarez later told Garcia that Romani wanted to have DeMola killed. Alvarez testified to having asked her son, Anthony Anderson, if his friend, Roger Ibarra, would be willing to commit the murders.

Alvarez stated she met with Anderson, Garcia, and Ibarra to discuss the proposed murders. Ibarra later agreed to commit the murders for $10,000 per person. Alvarez attested Romani agreed to these terms and entrusted Alvarez with $5,000 to give Ibarra as an initial payment. Alvarez ratified the agreement with Ibarra and handed him the $5,000 and the list of names. About a week or two later, Alvarez recalled hearing the news of DeMola's murder on the radio. She hurried to Romani's home to relay the news to the doctor, but Romani had already learned of the homicide when Alvarez arrived. Alvarez next told the jury of a dinner she subsequently had with Romani, Ibarra, and Garcia at a restaurant in which Romani brought the final $5,000 payment. Alvarez claimed she gave the money to Garcia who was to pass it on to Ibarra. Garcia, who corroborated having dinner and drinks with Romani, Ibarra and Alvarez after the murder, denied participating in any murder scheme or giving Ibarra any money.

After Alvarez testified, but prior to the state's introduction of testimony by other coconspirators, defense counsel informed the judge she wanted to object to the proposed testimony. Defense counsel anticipated these witnesses would be introducing hearsay statements made by other coconspirators. The trial judge stated he had discretion to accept such testimony before the conspiracy was established; nevertheless, he believed Alvarez's testimony had established the conspiracy, independent of any coconspirator's testimony. Defense counsel contended the conspiracy and defendant's participation had not been established by independent evidence. Defense counsel then requested the judge give the jury cautionary instructions regarding the conspiracy. Thereupon the jury was called in and the judge instructed them that "the conspiracy itself, and each member's participation in it must be established by independent evidence before you can consider the statements of coconspirators."

In the testimony that followed, Roger Ibarra confirmed he met with Alvarez, Garcia and Anderson, at Anderson's suggestion, and agreed he would commit the murders himself or find someone else to be the triggerman. Ibarra then went to see Antonio Gonzalez Valdibia, to subcontract the murders. According to Ibarra, Gonzalez consented to the murder scheme, but wanted to enlist the assistance of a friend, Alberto Vinas. Gonzalez took Ibarra to see Vinas, who agreed to commit the murders for $10,000 per person. Ibarra confirmed the sum with Alvarez. Ibarra retained $1,000 of the initial $5,000 he received from Alvarez and turned over the remaining $4,000 to Gonzalez and Vinas, along with the list of names.

According to the original plan, the first person on the list to be murdered was to have been John Nulty, the Medicaid fraud investigator. Ibarra testified he, Gonzalez and Alvarez conducted a surveillance of Nulty. Ibarra later decided Nulty was too difficult a target. On his own initiative Ibarra selected DeMola as the first victim, but he did not inform Alvarez or Anderson of this change. ³ Alvarez denied ever meeting Gonzalez or participating in any surveillance of Nulty.

After an undetermined number of days, Ibarra became concerned he had not heard any news regarding DeMola's death. He arranged a meeting with Gonzalez and Vinas at a bar. While at the bar, Ibarra testified that he, Vinas and Gonzalez were approached by two individuals who were introduced as Heriberto Nodarse and Papo. Nodarse and Papo allegedly told the others not to worry, that DeMola was dead.

Ibarra recounted joining Romani, ⁴ Alvarez, and Garcia at a restaurant to "celebrate the news" sometime after being told of the murder. According to Ibarra's report of the evening, Garcia first attempted to give Ibarra the final $5,000 payment, but was unable to do so safely. Ibarra claimed that sometime during the course of the evening Romani presented him with an envelope containing the final $5,000. Very late that same evening Ibarra rendezvoused with Gonzalez and Vinas. Together they heard the news of DeMola's murder on the radio. Ibarra then gave Gonzalez and Vinas $4,000 and kept another $1,000 for himself.

Antonio Gonzalez Valdibia offered testimony which at times conflicted with Ibarra's version of the events. Gonzalez claimed he declined to participate in the murders when Ibarra first approached him, but he nonetheless took Ibarra to see Vinas. Gonzalez maintained this was the extent of his participation. He learned the details of the murder scheme from Vinas. Approximately a week after Ibarra initially approached Gonzalez, Ibarra handed him an envelope containing $4,000 to deliver to Vinas. Vinas took $2,000 and paid Gonzalez with the remaining $2,000 to "keep his mouth shut." Sometime after this episode, Vinas informed Gonzalez that he was going to subcontract the murder. Gonzalez accompanied Vinas to a bar later that day, where he observed Vinas talking to three individuals outside. Shortly thereafter, Gonzalez learned the individuals were Nodarse, William and Papo, the men Vinas allegedly paid to kill DeMola. On cross-examination Gonzalez denied ever meeting Alvarez, conducting any surveillance of Nulty, or actively participating in the murder of DeMola.

Evidence was presented at trial that thirteen days before the murder, Romani withdrew $10,000 from her bank account. She kept $5,000 in cash and deposited the remaining $5,000 in a new bank account. Six days later, $4,800 was withdrawn from the new account. A hospital employee, who worked at the hospital where DeMola was killed, testified he observed two suspicious latin-looking men in the doctors' parking lot and later saw them jump into the back of a white pickup truck driven by another man and speed away, shortly before he discovered the body of DeMola. Gonzalez in his testimony reported Nodarse drove a white pickup truck. All the conspirators who testified, with the exception of Romani, denied ever meeting DeMola.

At the close of the state's case and again after the defense rested, defense counsel moved for a judgment of acquittal and to exclude the hearsay statements of the coconspirators. The court denied the motions, ruling that sufficient evidence had been adduced to show a conspiracy between the named parties.

A discussion of the law surrounding the coconspirator hearsay exception is in order before addressing the first issue defendant raises. Under section 90.803(18)(e), Florida Statutes (1987), hearsay statements made by one member of a conspiracy are admissible against other members of the conspiracy provided the statements were made during the course, and in furtherance of the conspiracy. ⁵ Florida case law additionally requires that before a coconspirator's statement is admissible, independent evidence must be introduced establishing the conspiracy and defendant's and declarant's participation in the conspiracy. Honchell v. State, 257 So.2d 889 (Fla.1971); Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA), review denied, 408 So.2d 1096 (Fla.1981). The quantum of proof the government must present to establish the existence of a conspiracy is not specified by either the Florida or the Federal Evidence Code. ⁶ Initially federal and state courts provided no consensus on the appropriate quantum of proof; the courts had...