Torres-Arboledo v. State, TORRES-ARBOLED

• Court: Florida Supreme Court
• Writing for the Court: EHRLICH; McDONALD; BARKETT; BARKETT
• Citation: 13 Fla. L. Weekly 229,524 So.2d 403
• Parties: 13 Fla. L. Weekly 229 Oscarppellant, v. STATE of Florida, Appellee.
• Decision Date: 24 March 1988
• Docket Number: A,No. 66354,TORRES-ARBOLED

Page 403

524 So.2d 403 13 Fla. L. Weekly 229 Oscar TORRES-ARBOLEDO, Appellant,
v.
STATE of Florida, Appellee. No. 66354. Supreme Court of Florida. March 24, 1988.
Rehearing Denied May 24, 1988.

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James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

EHRLICH, Justice.

Oscar Torres-Arboledo, a prisoner under sentence of death, appeals his convictions for attempted armed robbery and first-degree murder and the sentences attendant thereto. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentences.

According to testimony presented at trial, on June 24, 1981, Torres-Arboledo, an illegal alien from Colombia, and another "Spanish-speaking guy" met Raymond Jacobs in a bar. Jacobs and his girlfriend, Desiree Bell, were riding around in Bell's parents' car when Jacobs stopped at the bar to get cigarettes. Using "broken language" Torres-Arboledo offered Jacobs money for a ride. The two Spanish-speaking men got in the car with Jacobs and Bell and by using hand signals and pointing directed them which way to go. Eventually, a third Spanish-speaking man was picked up. After picking up the third man, Jacobs drove on until the men motioned for

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him to stop at a church. The trio got out and Torres-Arboledo asked Jacobs and Bell to wait. While Jacobs and Bell waited, the trio went into Pat's Paint and Body Shop. George Williams, who was working in the shop, saw the trio approach the owner Patricio Lorenzo. It appears from the testimony that the trio attempted to take Lorenzo's gold chain and medallion worth approximately $400. When Lorenzo refused to give up the chain, he was shot twice, once in the arm and once in the chest. Although no one witnessed the shooting, according to Williams Torres-Arboledo was in possession of the gun immediately after the shooting. Jacobs and Bell testified that when the trio returned to the car, Torres-Arboledo had the gun in his hand and ordered Jacobs to "go." When the car eventually stalled, Jacobs and the three Spanish-speaking men jumped out and ran. One of the three Spanish-speaking men was apprehended at the scene. He was granted immunity in exchange for his testimony; however, at the time of the trial, this participant had returned to Colombia and could not be found. The third Spanish-speaking man was never apprehended and did not testify at Torres-Arboledo's trial. Torres-Arboledo was eventually charged with attempted armed robbery and first-degree murder; he was extradited from California where he was serving a twenty-seven-year sentence in connection with a California murder which occurred subsequent to this offense.

The jury found Torres-Arboledo guilty of attempted armed robbery and first-degree murder and recommended a life sentence. The trial court overrode this recommendation and imposed the death penalty, finding two aggravating circumstances and no mitigating circumstances. The trial court also departed from the recommended guidelines sentence for the attempted armed robbery, imposing the statutory maximum of fifteen years.

GUILT PHASE

Torres-Arboledo's first claim deals with testimony elicited from two state witnesses concerning statements made by the victim prior to his death. Torres-Arboledo argues that statements made by Lorenzo at the hospital to emergency room physician Dr. Mallea and statements made to George Williams soon after the shooting were inadmissible hearsay.

On direct examination Dr. Mallea, who treated Lorenzo in the emergency room, was allowed to testify, over objection, that Lorenzo told him "a couple of black people tried to steal his medal and shot him." The state maintains that the trial court properly admitted this statement under section 90.803(4), Florida Statutes (1985), as a statement made for the purpose of medical diagnosis or treatment. Torres-Arboledo contends that only the statement that Lorenzo was shot was admissible as a statement made for the purpose of medical diagnosis or treatment. The trial court found the entire statement to Dr. Mallea admissible under this exception to the hearsay rule. Under section 90.803(4) of the Florida Evidence Code, statements which describe the inception or cause of an injury are admissible if they are reasonably pertinent to the diagnosis or treatment of the injury. However, so called statements of fault do not qualify. See Ehrhardt, Florida Evidence, § 803.4 (2d ed. 1984). With this distinction in mind, we agree with the appellant that the statement that Lorenzo was shot was admissible because it was reasonably pertinent to the diagnosis or treatment of his wounds; but, the statement that black people tried to steal his medallion was not admissible, as it constitutes information which was not reasonably pertinent in medical treatment.

The state maintains that even if portions of the statement to Dr. Mallea were not admissible under section 90.803(4) the entire statement was admissible as a dying declaration under section 90.804(2). We cannot agree. Before a hearsay statement is admissible as a dying declaration the court must be satisfied that the deceased declarant, at the time of its utterance, knew that his death was imminent and inevitable. Teffeteller v. State, 439 So.2d 840, 843 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754

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(1984); Lester v. State, 37 Fla. 382, 385, 20 So. 232, 233 (1896). "Whether a proper and sufficient predicate has been laid for the admission in evidence of a dying declaration is a mixed question of law and fact and will not be disturbed unless clearly erroneous." Teffeteller, 439 So.2d at 843-44. The trial court in this case specifically ruled that the statement to Dr. Mallea did not qualify as a dying declaration. We cannot say that this ruling was clearly erroneous. Thus, we conclude that that portion of Lorenzo's statement to Dr. Mallea describing those who shot him and the circumstances under which he was shot were not admissible under either exception to the hearsay rule urged by the state. However, since the improperly admitted statement that the perpetrators were black and that they tried to take Lorenzo's medallion was merely cumulative to the testimony of George Williams which we find was properly admitted, admission of the statement to Dr. Mallea was harmless beyond a reasonable doubt.

George Williams testified that while working in the shop he saw three black men approach Lorenzo. Williams did not witness the attempted robbery or the shooting, but testified that after he heard a shot he went to see what happened. He saw Lorenzo running towards the shop office. Williams then heard a second shot and yelled "Patricio, what is the matter?" When Torres-Arboledo pointed the gun at Williams, Williams threw a sprayer and then a tube at him. After the three men ran from the building, Williams asked Lorenzo "What happened?" Lorenzo responded that "They [the three black men] wanted to take the chain away from me." The trial court properly admitted this statement as an excited utterance under section 90.803(2). It is clear from the record that Lorenzo's statement to Williams was made, if not immediately after the shooting, very shortly afterwards while Lorenzo was under the stress of having just been shot.

Torres-Arboledo's next point on appeal involves defense counsel's unsuccessful attempt to impeach state witness Jacobs by questioning him concerning prior arrests for obstructing justice and giving false information. During cross-examination, defense counsel asked Jacobs whether he had been arrested for obstructing justice and giving false information. The trial court sustained the state's objection and informed defense counsel that he could ask whether Jacobs had ever been convicted of a felony or a crime involving dishonesty or false statement, as provided under section 90.610(1), Florida Statutes (1985). Section 90.610(1) provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

Defense counsel proceeded to ask Jacobs if he had ever been convicted of a felony but never asked about convictions involving dishonesty or false statement. In fact, counsel conceded that he did not know if Jacobs had been convicted of obstructing justice and giving false information.

We also reject Torres-Arboledo's claim that questions concerning the arrests were admissible to show bias. When charges are pending against a prosecution witness at the time he testifies, the defense is entitled to bring this fact to the jury's attention to show bias, motive or self-interest. Fulton v. State, 335 So.2d 280 (Fla.1976). However, it is clear from the record that defense counsel never suggested that charges were pending in connection with these arrests; nor did he urge the trial court to allow him to question Jacobs to show bias in connection with pending charges. Under these circumstances, the questions concerning prior arrests were properly excluded.

Torres-Arboledo's third point on appeal deals with testimony of the victim's daughter, Maria Ferrer. Ferrer was called by the state for the primary purpose of identifying her father's medallion. At the beginning of her testimony, when asked "Do you know a man by the name of

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Patricio Lorenzo," Ferrer began crying on the witness stand. Defense counsel asked to approach the bench and the court ordered the jury to be taken from the courtroom. Ferrer apologized for the outburst. After she regained her composure the jury returned to the courtroom and she resumed her...