Salas v. State, 5D06-2994.

Citation972 So.2d 941
Decision Date14 December 2007
Docket NumberNo. 5D06-2994.,5D06-2994.
PartiesMichael SALAS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Jeffrey L. Dees, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Michael Salas appeals from his convictions and sentences arising out of the six-victim Deltona murders in 2004.

Salas was tried and convicted, along with codefendants Troy Victorino and Jerone Hunter, of multiple counts of first degree murder (premeditated and, felony murder), one count of conspiracy and one count of armed burglary. Salas raises four challenges on appeal. First he claims fundamental error occurred when the conjunction "and/or" was used between the defendants' names in the jury instructions on the substantive charges as well as in the principals instruction. Second, he argues reversible error occurred when his requested instruction on the defense of duress was denied. In addition, he challenges two evidentiary rulings, one precluding him from cross examining the medical examiner as to the blood alcohol levels of two of the victims, and the other permitting into evidence testimony about his lack of remorse.

At the outset, this is not a case which involves a fundamental error analysis. Fundamental error is a term used by appellate courts where the error at trial is not preserved for appellate review. Crumbley v. State, 876 So.2d 599, 601, n. 2 (Fla. 5th DCA 2004). In this case, the instructional error was preserved by timely objection. Thus, our review of that issue is to determine whether the instructional error constitutes reversible error. This implicates harmless error analysis which requires us to consider the totality of the circumstances including the evidence, the instructions in their entirety, the verdict of the jury, with the ultimate determination concerning whether there exists a reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986),

THE FACTS

Salas, Victorino and Hunter were jointly tried. At trial, the following evidence was presented.

On August 6, 2004, at 6:30 a.m., a visitor to the house at 3106 Telford Lane, Deltona, found the front door open and saw a body in the living room. The visitor called 911, and sheriffs deputies responded. Inside, law enforcement personnel found the bodies of four men, two women and a small dog: Erin Belanger, Francisco Ayo-Roman and the dog were found in the back right master bedroom; Jonathan Gleason and Anthony Vega were found in the living room; Michelle Nathan was found in the front left bedroom; and Roberto Gonzalez was found lying in the doorway of the back left bedroom. All victims had signs of blunt force injuries to the head and other areas of their bodies and also knife wounds to the neck and upper torso.

Though locked with a deadbolt lock, the front door had been kicked open, and a shoeprint thirteen inches in length was found in the center of the door. A trail of blood from the front left bedroom indicated that the body of victim Vega had been dragged from that bedroom to the living room.

The medical examiner testified that the cause of death of all the victims was severe blunt force trauma to the head and that they had also suffered non-fatal blunt force injuries to other areas of their bodies. Each of the victims had several areas of severe trauma to the head, any one of which would have caused instantaneous loss of consciousness and death, The blunt force trauma was consistent with having been caused by a cylindrical object such as a baseball bat. He testified that all the knife wounds had been inflicted post-mortem.

During cross examination of the medical examiner, defense counsel told the trial court he wanted to ask the witness about blood alcohol tests conducted on victims Vega and Roman that showed levels of .08 and .12 on Vega, and .07 and .12 on Ayo-Roman. The State objected on relevancy grounds. Counsel stated that he believed it was relevant to the issue of how six people died at one time in the house. The trial court sustained the objection.

Robert Cannon, a former codefendant, was called by the State. Cannon had previously entered into a plea deal providing that in return for pleading guilty to all counts in the indictment, he would receive a life sentence and testify against the remaining defendants.

Cannon testified that he had known Salas since middle school but knew Victorino and Hunter for only a couple of days before the crime. He then stated he could not answer any further questions because he was not guilty and, could not say anymore, except that he wanted a trial. The prosecutor nevertheless asked Cannon if, at the time he drove Victorino to the Telford Lane home, he (Cannon), knew the intent was to kill everyone in the house. Cannon testified "that may have been in his [Vietorino's] mind but it was not in mine." Cannon added that "me and [Salas] were in fear for our life. We had no choice. We had to go with him. Because he would've killed me and [Salas]."

When pressed by the prosecutor to "at least tell the jury" who went into the house and who had baseball bats, Cannon said all the defendants had baseball bats. At that point, Cannon refused to answer further questions.

Next, Investigator Horzepa of the sheriff's department testified that Victorino was found on Saturday, August 7, 2004, at a house on Fort Smith Boulevard in Deltona and was arrested. Hunter was with Victorino and came in voluntarily for an interview.

Horzepa testified that Hunter told him he was living with Victorino at the Fort Smith house. Hunter said he went to the Telford Lane house on the night of the murders because the people in that house had his belongings and identification and he wanted to retrieve them. He arrived at the Telford Lane house in Cannon's Ford Expedition sometime after midnight.

Hunter continued that he had an aluminum bat with him and that he knew Erin and her boyfriend lived there. He entered the front door and saw a white male in a recliner in the living room watching T.V. Hunter hit the male with the bat. Hunter could not remember how many times he hit this person, he was just swinging the bat. He stated that he hit him more than three times and probably less than twelve times.

Hunter also struck Roberto Gonzalez who was in the back bedroom and continued striking him with the bat. Hunter was just swinging and could not recall where the blows landed. Hunter said this was not supposed to happen. Hunter said he was supposed to get back his belongs which had been stolen from his residence.

A day later, Investigator Horzepa interviewed Salas who initially denied any involvement in the crimes. Salas eventually admitted he was at the Telford Lane house on the night of the murders and was armed with a baseball bat. Salas said that he hit the black male (Gonzalez) who was in the back bedroom, in the leg, arm and back three to four times, but that this was the only person in the house whom he struck. Salas denied hitting anyone in the head. The demeanor of Salas was "unconcerned" and "deadpan." Salas said he had disposed of the pants he had worn and had a change of clothes with him on the night of the murders. Salas told Horzepa where to find the bats that had been used in the commission of the crimes. In fact, Salas had helped dispose of the bats and had wiped the blood off them. Salas stated that he saw only one female, who was already dead, in the master bedroom of the Telford Lane house.

Brandon Graham, a close friend of Cannon and Salas, next testified. He first met Victorino and Hunter four days before the murders when he was in Cannon's Ford Expedition with Cannon, Salas, Victorino, Hunter and several female acquaintances. They were going to a home on Telford Lane to retrieve Victorino's belongings. Victorino said he "wanted us to fight some kids to get his stuff back." Graham, Hunter, Cannon and Salas had baseball bats while the females had knives. The females went inside the house and much yelling and cursing could be heard. The females came out with Victorino's CD case but one of the people inside the house yelled they were calling the police and the group re-entered Cannon's truck and drove away.

Two days before the murders, the group, including Sales, met at a park "to fight some kids." No fight occurred but as they were driving away in Cannon's truck, they saw the kids they were planning to fight and chased them. Victorino fired a shot but the chase was broken off. Cannon let Victorino keep the gun for protection.

According to Graham, the following day the group, including Salas, returned to Victorino's residence. Victorino described a movie he had seen where "a group of niggers had ran up on some nigger's house and had beat them to death with lead pipes." Victorino said, "If I had a group of niggers to do that shit, then I would do it," and later said he would do it at the Telford Lane house. Salas said, "Yeah, I'm down for it," and started to talk to Cannon, who "shook his head yeah," and said, "I'm ready to kill me a bitch." Victorino told Hunter that he knew Hunter was "down with it" because they had taken Hunter's belongings, too. Victorino then went over a layout of the house and who would be where.

According to Graham, Victorino stated that he wanted to kill "Flaco" (victim. Ayo-Roman), and told the others "to beat the bitches, you got to beat the bitches because all they do is talk shit." They talked some more, and. Hunter suggested they should wear masks, but Victorino said, "No, because we're not gonna leave any evidence. We're gonna kill them all." They left the residence and drove around looking for bullets; there were a lot of baseball bats in the Expedition. Victorino and Hunter got out of the truck at one point and Cannon asked Graham if he was...

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