Ruiz v. State

• Decision Date: 01 April 1999
• Docket Number: No. 89,201.,89,201.
• Citation: 743 So.2d 1
• Parties: Walter RUIZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

743 So.2d 1

Walter RUIZ, Appellant, v. STATE of Florida, Appellee.

No. 89,201.

Supreme Court of Florida.

April 1, 1999.

Rehearing Denied May 12, 1999.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty on Walter Ruiz. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the conviction and vacate the sentence because of prosecutorial misconduct.

Between 7 and 8 p.m. on April 7, 1995, Rolando Landrian was abducted from a Stop and Shop convenience store parking lot in Tampa and shot to death. Walter Ruiz was arrested in June and charged with first-degree murder, armed kidnapping with a firearm, and robbery with a firearm. Evidence adduced at trial showed the following: Landrian was the former common law husband of Lotia Romanes; after the couple broke up, Lotia and her subsequent husband, Delio, worked for and at times lived with Landrian; Lotia and Delio lived in Tampa and on occasion bought drugs from Ruiz who lived in Orlando; Lotia and Delio ultimately bailed Ruiz out of jail on an unrelated robbery charge and solicited him and a second person, Micky Hammonds, to "rough up" or kill Landrian because Landrian had raped Lotia's two daughters by a different marriage.

Hammonds entered a plea and testified for the State.¹ He attested to the murder-for-hire plot and explained that on the day of the murder he and Ruiz followed Landrian throughout Tampa but were unable to accost him until that evening. Hammonds testified that after they kidnapped Landrian at the Stop and Shop he drove the getaway car while Ruiz held a gun on Landrian. When Hammonds stopped the car, Ruiz and Landrian got out and Ruiz shot Landrian. The State presented several witnesses who testified that they saw Ruiz on the day of the murder outside Landrian's house and at the Stop and Shop.

Ruiz presented an alibi defense, claiming that he was in Orlando on the day of the murder. Several witnesses attested to this. Ruiz claimed that while the Romanes had solicited him to rough up Landrian, he turned the offer down. Delio, he claimed, was the real killer, and Hammonds was being paid to implicate Ruiz.

Ruiz was convicted as charged and the court followed the jury's ten-to-two recommendation and imposed a sentence of death on the first-degree murder count based on four aggravating circumstances,² no statutory mitigating circumstances, and several nonstatutory mitigating circumstances.³ The court imposed concurrent life sentences on the remaining counts. Ruiz raises five issues on appeal.⁴ As his first two points, Ruiz contends that the prosecutors engaged in egregious misconduct during closing argument in both the guilt and penalty phases of the trial. We agree. A criminal trial is a neutral arena wherein both sides place evidence for the jury's consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence:

A criminal trial provides a neutral arena for the presentation of evidence upon which alone the jury must base its determination of a defendant's innocence or guilt. Attorneys for both sides, following rules of evidence and procedure designed to protect the neutrality and fairness of the trial, must stage their versions of the truth within that arena. That which has gone before cannot be considered by the jury except to the extent it can be properly presented at the trial and those things that cannot properly be presented must not be considered at all.

The role of the attorney in closing argument is "to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to `testify' as an `expert witness.' The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence." United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978) (emphasis in original). To the extent an attorney's closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty.

It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.

The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Hall v. United States, [419 F.2d 582, 583-84 (5th Cir.1969)].

United States v. Garza, 608 F.2d 659, 662-62 (5th Cir.1979) (citations and footnote omitted).

The present case was a hotly contested credibility battle with conflicting evidence and witnesses. As noted above, the State contended that Ruiz was a hit-man for the Romanes and that he executed Landrian. Hammonds, the driver during the alleged kidnapping and murder, testified at length concerning this. Mary Jo Hahn, a neighbor of Landrian's, stated that she saw Ruiz in the passenger seat of a car parked outside Landrian's house on April 7, and Stop and Shop employee Charles Via and manager Michael Witty both identified Ruiz as the man they saw accosting Landrian.

The defense, on the other hand, claimed that Ruiz was elsewhere on the day of the murder. Ruiz himself testified that he was in Orlando with his mother running errands and shopping at K-Mart and that later that evening he met with his ex-wife at her home and played with his children. Both his mother and ex-wife attested to this, and several eyewitness reported seeing him with his ex-wife that night. Inmate Alderman testified that Hammonds told him in prison that whereas he, Hammonds, was blaming the murder on Ruiz, it actually was the stepfather of the raped daughters, i.e. Delio Romanes, who committed the murder.

The witnesses for both sides were subjected to extensive cross-examination and impeachment, and the credibility of each was called into question. At the zenith of this fray, during closing argument in the guilt phase, prosecutor Cox sought to bolster the credibility of the State's case with the following improper statements:

[MS. COX:] What interest, ask yourselves what interest does [State witness] Charles Via, Michael Witty, the Hahns, Dianne Guty and Abraham Machado have in seeing that somebody other than the person responsible for this horrible crime be convicted? What interest do we as representatives of the citizens of this county have in convicting somebody other than the person—

MR. DONERLY: Objection, Your Honor.

THE COURT: Yeah, sustained.

MR. DONERLY: Move for a mistrial.

THE COURT: Denied.

MS. COX: Delio Romanes was charged in this case. What interest is there to bamboozle anybody about Delio's real role in this case. Ask yourselves that. No one is saying Delio Romanes has clean hands, but what interest does anybody have in saying that Delio Romanes isn't the person responsible for this if he was?

By arguing that the prosecutors as representatives of the State have no interest in convicting anyone other than the guilty ("What interest do we [prosecutors] as representatives of the citizens of this county have in convicting somebody other than the person—."), prosecutor Cox was implying, "If the defendant wasn't guilty, he wouldn't be here." This type of argument has been soundly rejected by courts. In finding the statement "we try to prosecute only the guilty" indefensible, the court in Hall v. United States, 419 F.2d 582 (5th Cir.1969), explained:

This statement takes guilt as a predetermined fact. The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, arguably it may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Appellant's trial was held and the jury impaneled to pass on his guilt or innocence, and he was clothed in the presumption of innocence. The prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial not sit as a thirteenth juror.

Id. at 587 (citation and footnote omitted).

The State engaged in a second line of improper comment in closing argument in the guilt phase when prosecutor Goudie compared the defendant to Pinocchio:

It's the evidence in this case that you're to look at and you look at it and you say, look at this stuff. Is this enough to give me an abiding conviction of guilt? I can't even think of a way that it isn't enough to give you an abiding conviction of guilt, an overwhelming conviction of guilt. There's no way, no stretch of the imagination because let me tell you one thing, if that guy were Pinocchio, his nose would be so big none of us would be able to fit in this courtroom on what he said [up] there.

You all had an opportunity to watch him. Give me a break, okay? Look to the evidence, think about it. Use your common sense, and

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