San Martin v. State

• Decision Date: 24 December 1997
• Docket Number: No. 83611,83611
• Citation: San Martin v. State, 705 So.2d 1337 (Fla. 1997)
• Parties: 23 Fla. L. Weekly S1 Pablo SAN MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1337

705 So.2d 1337

23 Fla. L. Weekly S1

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

No. 83611.

Supreme Court of Florida.

Dec. 24, 1997.

Rehearing Denied Feb. 23, 1998.

Lee Weissenborn, Miami, for Appellant.

Robert A. Butterworth, Attorney General, and Randall Sutton, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the judgment of the trial court adjudicating Pablo San Martin guilty of first-degree murder and other crimes and sentencing him to death.We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

San Martin, along with codefendants Leonardo Franqui and Pablo Abreu, was 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.Prior to trial, Abreu negotiated a plea with the State and subsequently testified during the penalty phase about the planning of the offenses.San Martin and Franqui were tried jointly.

The following facts were established at the trial of San Martin and Franqui.Danilo Cabanas Sr., and his son Danilo Cabanas, Jr., operated a check-cashing business in Medley, Florida.On Fridays, Cabanas Senior would pick up cash from his bank for the business.After Cabanas Senior was robbed during one of his bank trips, his son and a friend, Raul Lopez, regularly accompanied him to the bank.

On Friday, December 6, 1991, the trio left the bank with $25,000 in cash.The Cabanases rode together in a Chevrolet Blazer driven by the son; Lopez followed in his Ford pickup truck.As the trio drove alongside the Palmetto Expressway, their vehicles were "boxed in" at an intersection by two Chevrolet Suburbans.Two masked men exited from the front Suburban and began shooting at the Cabanases.When Cabanas Senior returned fire, the assailants returned to their vehicles and fled.Cabanas Junior also saw one masked person exit the rear Suburban.

Following this exchange of gunfire, Lopez was found outside his vehicle with a bullet wound in his chest.He was transported to the hospital, but died shortly thereafter.

The Suburbans driven by the masked men were found abandoned.It was subsequently determined that both vehicles had been stolen.The Suburbans suffered bullet damage, including thirteen bullet holes in one vehicle.The Cabanases' Blazer was also riddled with ten bullet holes.

San Martin's confession and a subsequent statement, in which he told the police where he had disposed of the weapons used in the incident, were admitted at trial.San Martin refused to allow either statement to be recorded stenographically, but did sign a waiver of his Miranda ¹ rights and orally confessed to the crime.San Martin admitted his involvement in the incident and recounted the details of the plan and how it was executed.He explained that Fernando Fernandez had told him and Franqui about Cabanas's check cashing business several months before this incident and that they had planned the robbery by watching Cabanas to learn his routine.He also explained how they used the stolen Suburbans to "box in" the victims at an intersection: San Martin and Abreu drove in front of the Cabanases' Blazer and Franqui pulled alongside the Blazer in the second Suburban so that the Cabanases could not escape.He also recounted that a brown pickup driven by Cabanas's "bodyguard" drove up behind the Blazer.San Martin stated that he exited the passenger side of the first Suburban armed with a 9 mm semiautomatic pistol and that Abreu exited the driver side armed with a "small machine gun."San Martin admitted that he initiated the robbery attempt by telling the occupants of the Blazer not to move and that he shot at the Blazer when the driver fired at them.However, he denied firing at Lopez's pickup.San Martin also detailed Franqui's role in the planning and execution of the crime.He placed Franqui in proximity to Lopez's pickup, but could not tell if Franqui fired his gun during the incident.San Martin initially claimed that he had thrown the weapons used in the incident off a Miami Beach bridge, but in a subsequent statement admitted that he had thrown the weapons into a river near his home and drew a map detailing the location.Two weapons, a 9 mm semiautomatic pistol and a .357 revolver, were later recovered from that location by a police diver.San Martin did not testify at trial, but his oral confession and subsequent statement about the guns were admitted into evidence.

Franqui's formal written confession was also admitted at trial, over San Martin's objection.Franqui initially denied any knowledge of the Lopez shooting, but confessed when confronted with photographs of the bank and the Suburbans.Franqui recounted the same details of the planning and execution of the crime that San Martin had detailed.Franqui admitted that he had a .357 or .38 revolver.He also stated that San Martin's 9mm semiautomatic jammed at times and that Abreu carried a Tech-9 9 mm semiautomatic which resembles a small machine gun.Franqui claimed that he returned fire in Lopez's direction after Lopez opened fire on him.

A police firearms expert testified that the bullet recovered from Lopez's body was consistent with the .357 revolver used by Franqui during the attempted robbery.The expert also stated that a bullet recovered from the passenger mirror of one of the Suburbans and a bullet found in the hood of the Blazer were definitely fired from the same gun as the Lopez bullet.However, due to the rust on the .357 recovered from the river, the expert could not rule out the possibility that all three bullets had been fired from another .357 revolver.

The jury found San Martin guilty as charged on all counts and recommended by a nine-to-three vote that he be sentenced to death for the first-degree murder conviction.The trial court found that three aggravating circumstances were proven beyond a reasonable doubt: (1) prior violent felony convictions; (2) the murder was committed during the course of an attempted robbery and for pecuniary gain (merged into one aggravating circumstance); and (3) the murder was committed in a cold, calculated, and premeditated manner (CCP).See§ 921.141(5)(b), (d), (f), (i), Fla. Stat.(1995).The court found no statutory mitigating circumstances and only one nonstatutory mitigating circumstance: that San Martin was a good son, grandson, and brother who found religion in jail and displayed a good attitude in confinement.The court found that the aggravating circumstances outweighed the mitigating circumstances and sentenced San Martin to death on the first-degree murder charge.The court also imposed the following sentences for the other convictions: life imprisonment on the two attempted murder charges; fifteen years imprisonment on the attempted robbery and unlawful firearm possession charges; and five years imprisonment on the two grand theft charges.All sentences were ordered to run consecutively.

San Martin raises seventeen claims on appeal.He asserts the following as error: (1) the jury was death-qualified and San Martin was denied individual sequestered voir dire of the prospective jurors; (2)the trial court denied San Martin's motion to sever his trial from codefendant Franqui which violated his Confrontation Clause rights because Franqui's confession incriminating San Martin was admitted into evidence at their joint trial; (3)the court admitted into evidence San Martin's and Franqui's statements to the police; (4) and (5) the evidence was insufficient to sustain the conviction for premeditated murder; (6)the prosecutor commented on San Martin's right to remain silent; (7) the general verdict form did not specify whether the jury found San Martin guilty of premeditated or felony murder; (8) San Martin was denied the use of experts at trial; (9)the State's mental health expert misstated the law relating to mitigating circumstances and the trial court erred in subsequently rejecting San Martin's claimed mitigating circumstances; (10)the trial court erred by instructing the jury on the CCP aggravating circumstance and by finding that CCP was applicable; (11)the trial court prohibited either argument or instruction to the jury regarding the potential imposition of consecutive sentences; (12) defense counsel was prohibited from fully cross-examining State witnesses who testified about San Martin's past convictions; (13)the trial court failed to instruct the jury as to specific non-statutory mitigating circumstances that San Martin claimed were applicable; (14) the death penalty statute and instructions unconstitutionally shift the burden to the defendant to prove that a death sentence is not warranted; (15) the death penalty statute is unconstitutional; (16) numerous instances of prosecutorial misconduct rendered the trial unfair; and (17)the trial court made reference to a separate, and at the time untried, charge against San Martin for the murder of a police officer.

As his first issue, San Martin questions the jury selection process in two respects.First, he contends that Florida's jury selection process results in a jury that is death-qualified because prospective jurors who would not impose the death penalty are excused for cause and prospective jurors who are opposed to the death penalty but would impose it under the appropriate circumstances are removed through peremptory challenges.Initially, we note that this issue was not properly preserved as San Martin did not object to any of the State's peremptory challenges on this basis.Furthermore, we find no merit to this claim as "the Constitution does not prohibit the States from 'death qualifying' juries in capital cases."Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764, 90 L.Ed.2d 137(1986).Indeed, any group "defined solely...