San Martin v. State

• Decision Date: 28 August 2008
• Docket Number: No. SC05-831.,SC05-831.
• Citation: 995 So.2d 247
• Parties: Pablo SAN MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

995 So.2d 247

Pablo SAN MARTIN, Appellant, v. STATE of Florida, Appellee.

No. SC05-831.

Supreme Court of Florida.

August 28, 2008.

Rehearing Denied November 17, 2008.

Gustavo J. Garcia-Montes, Miami, FL, for Appellant.

Bill McCollum, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.

PER CURIAM.

Pablo San Martin, a prisoner under sentence of death, appeals the denial of his motion for postconviction relief. We have jurisdiction, see art. V, § 3(b)(1), (9), Fla. Const., and for the reasons explained below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The underlying facts are stated in our opinion affirming San Martin's convictions and sentences on direct appeal. See San Martin v. State, 705 So.2d 1337 (Fla.1997). We briefly summarize them. Danilo Cabanas, Sr. and his son, Danilo Cabanas, Jr., operated a check-cashing business in Medley, Florida. Id. at 1341. Because Cabanas Sr. had been robbed on a prior trip to pick up cash from the bank for his business, his son and a friend, Raul Lopez, regularly accompanied him to the bank. Id. On December 6, 1991, the men were driving from the bank in two cars. The Cabanases were in one vehicle, with Lopez following in another. Id. After leaving the bank with $25,000, and as they reached an intersection, they were "boxed in" by two Chevrolet Suburbans. Id. Two masked men began shooting at the Cabanases, and Cabanas Sr. returned fire. The assailants fled, but Lopez was shot and killed. Id.

San Martin orally confessed to the crime. Id. He admitted that several months before the crime, Fernando Fernandez had told him and Leonardo Franqui about Cabanas's check cashing business. They planned the robbery by watching Cabanas to learn his routine and they stole two Suburbans to "box in" the victims. Id. San Martin explained that he and Pablo Abreu drove in front of the Cabanases and Franqui pulled alongside so the victims could not escape. Id. He admitted initiating the robbery attempt and firing at the Cabanases, but denied firing at Lopez's vehicle. Id.

San Martin, Franqui, and Abreu were each charged with one count of first-degree murder, two counts of attempted first-degree murder with a firearm, one count of attempted robbery with a firearm, two counts of grand theft, and one count of unlawful possession of a firearm while engaged in a criminal offense. Id. Abreu negotiated a plea, testifying in the penalty-phase about the planning of the crime. Id. San Martin and Franqui were tried jointly. Id.

The jury found San Martin guilty on all counts and by a vote of 9-3 recommended death for the first-degree murder conviction. Id. at 1342.¹ The trial court found three aggravating circumstances: (1) prior violent felony convictions (armed robbery and armed kidnapping in one case and attempted first-degree murder and attempted robbery in another); (2) commission during the course of an attempted robbery and for pecuniary gain (merged); and (3) the murder was cold, calculated, and premeditated (CCP). 705 So.2d at 1342. The trial court found no statutory mitigators and only one nonstatutory mitigator—"that San Martin was a good son, grandson, and brother who found religion in jail and displayed a good attitude in confinement." Id. San Martin was sentenced to death for the first-degree murder. He raised seventeen claims on direct appeal, and we affirmed. Id. at 1351.² In October 1999, San Martin filed a shell postconviction motion, which he amended in April 2000. He raised thirty claims.³

After conducting a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla. 1993), the trial court summarily denied claims 1, 3, and 7-29. It denied claim 2 after conducting an in camera review, and claim 30 as moot.⁴ The court granted an evidentiary hearing on claims 4, 5, and 6. The State agreed that San Martin's attempted murder convictions should be vacated pursuant to State v. Gray, 654 So.2d 552, 553 (Fla. 1995) (holding that there is no crime of attempted felony murder). Defendant later filed two supplements to his motion. The first argued that section 921.141, Florida Statutes (1993) is unconstitutional on various grounds. The second claimed that San Martin is mentally retarded.

The trial court held an evidentiary hearing on two separate dates. As to claim 4, the defense presented testimony from San Martin; and as to claims 5 and 6, from Pablo Abreu and Monica Jordan (a private investigator). The State presented testimony from defense trial counsel (Manuel Vazquez and Fernando de Aguero) and Marilyn Milian. The trial court denied relief. For the reasons explained below, we affirm.

II. ANALYSIS OF APPEAL

San Martin appeals the denial of claim 5 after an evidentiary hearing, and the summary denial of claims 3, 9, 10, 11, 12, 17, 25, and 29.⁵ Below, we address San Martin's claim regarding Abreu's false testimony (claim 5), followed by the summarily denied claims.

A. Abreu's False Testimony Claim

In claim 5, San Martin alleged that prosecutors pressured Pablo Abreu to give false penalty-phase testimony that before the robbery San Martin knew of the plan to kill Lopez. He asserted that without this testimony, no basis for the CCP aggravator remains. Although he did not cite Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), he appears to allege a Giglio violation. San Martin's claim is based on an affidavit signed by Abreu on March 29, 2000, indicating that neither he nor San Martin knew about a murder plan. It further indicates that prosecutors threatened Abreu with the death penalty if he did not testify that the men planned to kill Lopez and that San Martin knew that the murder would take place. The trial court denied the claim after an evidentiary hearing.

Marilyn Milian was one of the trial prosecutors. At the evidentiary hearing, she testified that "[u]nder no circumstances in this case or any other case would I ever tell a defendant who is flipping what to testify to or suggest to him that if he doesn't say it my way he won't have a plea agreement or force anybody to testify contrary to what it is truthfully happened." She further testified that no one threatened Abreu with the death penalty if he did not testify a certain way.

Abreu speaks little English and cannot read or write English. He testified at the evidentiary hearing that he believed the document he signed was a declaration that he was not the killer because he did not fire the shot that killed Lopez. Jordan, the investigator who took his affidavit, admitted that she does not speak Spanish and that an interpreter was not used in her discussions with Abreu. Abreu further testified that no one threatened him with the death penalty or forced him to answer questions in a particular way. Finally, he testified that the prosecutors did not tell him to testify that San Martin knew someone was going to get killed, and that his testimony and conversations with prosecutors have at all times been truthful. Thus, for purposes of appeal, San Martin's claim has shifted from one that prosecutors coerced Abreu to testify falsely that San Martin was aware of the plan to kill Lopez, to a claim that prosecutors knowingly presented false testimony as to when San Martin became aware of the plan.

At trial, Abreu testified only during the penalty phase. He testified that the men stole two large vehicles and parked them behind a building. The morning of the incident, they met at San Martin's house. Franqui gave each of them a weapon. They then left in Abreu's van to pick up the stolen vehicles. The men first did a drive-through of the operation with Abreu and San Martin in Abreu's van and Franqui in one of the stolen vehicles. When they saw that the victims had arrived at the bank, they left the van on the expressway, got into the stolen vehicle Franqui was driving, and drove to pick up the other stolen vehicle. San Martin got in one vehicle, with Abreu driving. Abreu and San Martin went ahead, and Franqui went by the bank. When the victims left the bank, Franqui contacted them on a walkie-talkie. They then conducted the ambush.

Abreu also testified that before the crime, the men discussed shooting Lopez. His trial testimony was unclear, however, about exactly when it was discussed. At times he suggested that Franqui, San Martin, and he discussed the plan a couple of days before the ambush. At other times, however, he suggested that they discussed it on the morning of the crime when the men conducted a dry run of the robbery. At the evidentiary hearing, Abreu unambiguously testified that the plan to kill Lopez was first discussed on the morning of the incident.

We have described the elements of a Giglio violation as follows: "A Giglio violation is demonstrated when (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material." Green v. State, 975 So.2d 1090, 1106 (Fla.2008). False testimony is material "if there is a reasonable possibility that it could have affected the jury's verdict." Id. We apply a mixed standard of review to Giglio claims, deferring to the trial court's factual findings supported by competent, substantial evidence, but reviewing de novo the application of the law to the facts. Id.

The trial court found that San Martin's claim failed each of the Giglio prongs. We agree. Any difference between Abreu's trial testimony and his postconviction testimony concerns only the time when San Martin and Abreu became aware of the plan to kill Lopez. As noted above, however, this inconsistency was present within Abreu's trial testimony itself. Because of the ambiguity in Abreu's trial testimony on this issue, we cannot conclude that his testimony was false or that the State knew it was false.

Even if Abreu's inconsistent testimony could somehow be described as false, the inconsistency was not material. Abreu testified both at trial and at the evidentiary hearing that...