Almeida v. StateAlmeida v. State
We have on appeal the judgment and sentence of the trial court imposing the death penalty on Osvaldo Almeida. We have jurisdiction.
During the early morning hours of November 15, 1993, Osvaldo Almeida and Louis Salmon met several friends at Higgy‘s restaurant and ordered a pitcher of beer. When Almеida started to take a
Almeida was charged with first-degree murder, and during the guilt phase of the trial he contended that he was insane at the time of the crime. Family members and mental health experts testified concerning his extraordinarily brutal upbringing in Brazil,1 and two mental health experts testified that he could not distinguish right from wrong at the time of the crime.2 In rebuttal, the State presented two experts who testified that Almeida knew right from wrong at the time of the crime.3 Almeida was convicted as charged.
During the penalty phase, the State presented evidence of Almeida‘s first-degree murder convictions for killing two prostitutes in the weeks preceding the present crime.4 In mitigation, the defense presented testimony of family members attesting to Almeida‘s abusive childhood and testimony of several mental health experts attesting to his unstable mental state.5
Almeida‘s first claim concerns a discussion that took place during the State‘s closing argument in the guilt рhase. The claim focuses on three statements made by the prosecutor:
[MR. DONNELLY (prosecutor):] [Statement No. 1.] All persons are presumed to be sane. However, if the evidence causes you to have a reasonable doubt concerning the defendant‘s sanity, then the presumption of sanity vanishes and the State, I must prove beyond a reasonable doubt that the defendant was sane.
He is presumed to be sane. What evidence did you hear that led you to believe beyond a reasonable doubt that he is not sane?
MR. MOLDOF [defense counsel]: Objection, that‘s not the standard.
THE COURT: It‘s overruled. This is closings. Come on.
MR. DONNELLY: [Statement No. 2.] The testimony of Dr. Abbey Strauss and Dr. Ross Seligson was presented. If he is probably insane from what these doctors say, he is still presumed sane, still presumed sane. We‘re going to analyze their testimony in a couple minutes.
If evidence is presented beyond a reasonable doubt that leads you to believe that he is not sane, then that presumption vanishes.
MR. MOLDOF: That‘s the wrong standard. I would like to approach the bench.
THE COURT: If you want to approach the bench, fine, but I am going to instruct the jury as to the applicable and appropriate standard when I instruct them on the law. And it‘s the instructions that the Court gives that the jury is bound to follow. What the lawyers say is not evidence and it‘s not the law.
MR. MOLDOF: I would still like to approach for a moment.
MR. DONNELLY: [Statement No. 3.] The Judge is going to instruct you on the law regarding insanity, this is what we anticipate that he will read to you or instruct you regarding sanity. All persons are presumed to be sane. However, if the evidence causes you to have a reasonable doubt concerning the defendant‘s sanity, then the presumption of sanity vanishes and the State must рrove beyond a reasonable doubt that the defendant was sane.
Almeida now claims that the trial court erred in overruling his objection to the prosecutor‘s first statement above. We agree.
The prosecutor‘s initial comment was an incorrect statement of the law. See
To the extent that Almeida now complains that the court erred in the way it addressed this issue after defense counsel asked to approach the bench, we disagree. The record shows that following the second statement above, it was defense counsel who led the discussion at the bench and who suggested the ultimate remedy, i.e., that the prosecutor read the standard instruction to the jury (“Why don‘t you just read it?“). This is exactly what the prosecutor did. Defense counsel then seemed satisfied—he asked for no curative instruction or other palliative measure and filed no objection. The trial continued in a routine fashion. The trial court had no notice whatsoever that defense counsel was anything but pleased with the resolution. We find no abuse of discretion. See generally Hooper v. State, 476 So.2d 1253 (Fla.1985).
Almeida next claims error on several points. During the course of the trial, the following transpired: (1) The prosecutor asked Louis Salmon if he was referring in his testimony to an incident involving a knife;11 (2) Almeida‘s employer testified that Almeida had told him that he had a vision of killing and felt no remorse;12 (3) Salmon testified that appellant
During redirect examination of State witness Louis Salmon, the following discussion transpired:
Q. Now, you said this was a crazy thing, an irrational act, is that what you said on cross examination?
A. Yes.
Q. I think you said he was paranoid?
A. Yeah. Q. Wasn‘t it your impression that Mr. Almeida knew that what he had done was wrong?
A. Yeah.
Q. In fact, in your words, he was a bad boy, so it‘s time for him to pay his dues?
MR. MOLDOF: I am going to object to that opinion.
THE COURT: It‘s overruled.
Q. (By Mr. Donnelly) In fact, it was your impression from him that he had been a bad boy, so it‘s time for him to pay his dues?
A. Yeah.
MR. MOLDOF: Objection, with regard to what Mr. Salmon thought.
THE COURT: It‘s overruled.
MR. MOLDOF: Motion to make.
Q. (By Mr. Donnelly) Is that not correct, Mr. Salmon?
A. Yeah.
Q. It was also your impression that he was prepared to face the consequences?
A. Yeah.
MR. MOLDOF: Same objection.
THE COURT: It‘s overruled.
THE WITNESS: Yeah.
MR. DONNELLY: Thank you, I have no further questions.
Almeida now claims that the court erred in overruling the defense objections. We disagree.
The above testimony related Salmon‘s opinion on three points: (1) Almeida knew that what he had done was wrong; (2) Almeida believed he had been a bad boy and it was time for him to pay his dues; and (3) Almeida was prepared to face the consequences. Generally, testimony is admissible on redirect that tends to clarify crоss-examination testimony. See Tompkins v. State, 502 So.2d 415, 419 (Fla.1986). The present record shows that the above testimony was elicited following cross-examination by defense counsel that called for Salmon‘s opinion on virtually identical matters.15 Thus, the above discussion was a fair response to Salmon‘s testimony on cross-examination.16 We find no error.
The State introduced as Exhibit No. 10 an autopsy photo of the victim that depicted the gutted body cavity. Almeida claims that this was error. We agree. Although this Court has stated that “[t]he test for admissibility of photographic evidence is relevancy rather than necessity,” Pope v. State, 679 So.2d 710, 713 (Fla. 1996), this standard by no means constitutes a carte blanche for the admission of gruesome photos. To be relevant, a photo of a deceased victim must be probative of an issue that is in dispute.17 In the present
Almeida was picked up by police November 29, 1993, and taken to headquarters where he was read his rights, signed a waiver form, and then confessed to the murder of Frank Ingargiola. Detective Mink later sought to begin a formal recorded interrogation session and the following taped discussion transpired:
Q. Do you mind if we call you Ozzie during this, or do you prefer your own name?
A. That is okay.
Q. Ozzie‘s okay?
A. Okay.
Q. Can you read and write the English language?
A. Can I read English?
Q. Can you read and write the English language?
A. Yes.
Q. Did you graduate high school?
A. No, not yet. I was still finishing.
Q. All right. Prior to us going on this tape here, I read your Miranda rights to you, that is the form that I have here in front of you, is that correct? Did you understand all of these rights that I read to you?
A. Yes.
Q. Do you wish to speak to me now without an attorney present?
A. Well, what good is an attorney going to do?
Q. Okay, well you already spoke to me and you want to speak to me again on tape?
Q. (By Detective Allard) We are, we are just going to talk to you as we talked to you before, that is all.
A. Oh, sure.
Q. (By Detective Mink) Ozzie, this is a statement taken in reference to an incident that occurred at in front of Higgy‘s on November 15th, 1993, in the morning hours. Where the night manager by the name of Frank Ingargiola was shot in the parking lot, directly out in front of Higgy‘s. In your own words can you tell me what took place on this night and your involvement in this?
A. Yes. Me and a couple of friends went to Higgy‘s after work.
Almeida then confessed again to the Ingargiola murder (and to the murders of the two prostitutes, Marilyn Leath and Chiquita Counts). Almeida now claims that the court erred in failing to suppress the taped statement. The State, on the other hand, contends that this issue is controlled by State v. Owen, 696 So.2d 715 (Fla.1997). We disagree.
We recently addressed the admissibility of this taped statеment in a companion case, Almeida v. State, 737 So.2d 520 (Fla. 1999) (”Almeida I“) (addressing Almeida‘s conviction for the murder of Chiquita Counts). We first determined that Almeida‘s utterance (“Well, what good is an attorney going to do?“) referred to his right to counsel and was a bona fide question calling for an answer, and we observed that this question was fundamentally different from the statement in Owen:
This scenario is not embraced within our holding in Owen. The type of utterance at issue in Owen was an equivocal statement which—pursuant to Davis— required no clarification and could not trump the clear waiver of rights Owen had made earlier. The type of utterance at issue here, on the other hand, was an un equivocal question that was prefatory to—and possibly determinative of—the
invoking of a right and which cast doubt on the knowing and intelligent nature of the prior waiver. Detective Mink plainly asked Almeida if he wanted to proceed without a lawyer, and Almeida just as plainly asked the officer what good a lawyer would do. There was nothing equivocal about this exchange and certainly nothing unclear about Almeida‘s question—it was a simple, direct question, susceptible of but a single interpretation. Almeida very clearly was asking the officer for fundamental information concerning his right to counsel.
Almeida I, 737 So.2d at 524. We concluded that under Traylor v. State, 596 So.2d 957 (Fla.1992), police must make a good-faith effort to answer a clear question concerning a suspect‘s rights:
The Court in Traylor thus held that if a suspect indicates in any manner that he or she wants the help of a lawyer the interrogation must case. This proscription necessarily embraces a scenario such as the present, for the defendant here was seeking basic information on which to make an informed decision concerning his right to counsel. No valid societal interest is served by withholding such information. Indeed, both sides can only benefit from disclosure: Disclosure ensures that any subsequent waiver will be knowing and intelligent, and it reaffirms those qualities in a prior waiver.18 Nondisclosure, on the other hand, is doubly harmful: It exacerbates the inherently coercive atmosphere of the interrogation session, and it places in doubt the knowing and intelligent nature of any waiver—whether prior or subsequent.
Accordingly, we hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise—i.e., to give an evasive answer, or to skip over the question, or to override or “steamroll” the suspect—is to actively promote the very coercion that Traylor was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freеly. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State. See Traylor, 596 So.2d at 966
Almeida I, 737 So.2d at 525. Finally, we held that police should have answered Almieda‘s question:
In the present case, we conclude that Detective Mink should have made an honest effort to answer Almeida‘s question concerning his right to counsel. Both Almeida and the State would have benefitted from the dissemination of basic, common sense information concerning this right. Instead, by ignoring the question and continuing the interrogation—i.e., by “steamrolling” the defendant—the officers did two things. First, they exacerbated the inherently coercive atmosphere of the interrogation session. (How could Almeida feel free to exercise his rights when police had just overridden his question concerning those rights?) And second, they placed in doubt the validity of the prior waiver. (How could Almeida have knowingly and intelligently waived his rights earlier if he did not know “what good ... an attorney [is] going to do?“)
Almeida I, 737 So.2d at 525. Because we were unable to say beyond a reasonable doubt that the erroneous admission of the taped statement in Almeida I did not contribute to the verdict, we reversed Almeida‘s conviction for the murder of Chiquita Counts. Id. at 523.
In his next claim, Almeida notes that during the course of these proceedings, defense counsel brought three points to the court‘s attention: (1) Prior to trial, a woman accompanying the victim‘s wife allegedly said to the defendant, “You should fry, you bastard;” (2) during the medical examiner‘s testimony at trial, the victim‘s mother allegedly began to cry; and (3) during Dr. Macaluso‘s testimony, someone in the audience allegedly made a sarcastic remark (“Who cares.“). Almeida now claims that the court erred in failing to grant a mistrial based on these incidents. We disagree. The record shows the following: (1) The jury was not exposed to the pretrial comment; (2) although neither the prosecutor nor the judge heard the mother sobbing, the court offered to give a curative instruction;19 and (3) although neither the judge nor the bailiff, who was sitting “right there,” heard the “who cares” comment, the court instructed the bailiff to tell the spectators to refrain from making such comments. We find no error. See generally Gorby v. State, 630 So.2d 544 (Fla.1993).
Almeida claims that the trial court erred in finding that CCP was established. We agree. A trial court‘s ruling on an aggravating circumstance will be sustained on review as long as the court applied the right rule of law and its ruling is suppоrted by competent substantial evidence in the record. See Willacy v. State, 696 So.2d 693 (Fla.1997). Competent substantial evidence is tantamount to legally sufficient evidence, and we assess the record evidence for its sufficiency only, not its weight.20
The present record shows the following: (1) Several witnesses testified that
Almeida next claims that his death sentence is disproportionate. We agree. The Court in State v. Dixon, 283 So.2d 1 (Fla.1973), held that the death penalty is reserved for only the most indefensible of crimes:
Review of a sentence of death by this Court ... is the final step within the State judicial system. Again, the sole purpose of the step is to provide the convicted defendant with оne final hearing before death is imposed. Thus, it again presents evidence of legislative intent to extract the penalty of death for only the most aggravated, the most indefensible of crimes.
Id. at 8. We later explained: “Our law reserves the death penalty only for the most aggravated and least mitigated murders.” Kramer v. State, 619 So.2d 274, 278 (Fla.1993).21 Thus, our inquiry when conducting proportionality review is twopronged: We compare the case under review to others to determine if the crime falls within the category of both (1) the most aggravated, and (2) the least mitigated of murders.
In the present case, as noted above, only a single aggravator (commission of a prior violent felony) applies. As a general rule, “death is not indicated in a single-aggravator case where there is substantial mitigation.” Jones v. State, 705 So.2d 1364 (Fla.1998). Nevertheless, this Court has affirmed the death penalty in singlе-aggravator cases where a prior murder was involved. See, e.g., Ferrell v. State, 680 So.2d 390 (Fla.1996) (affirming death sentence where sole aggravator was prior second-degree murder); Duncan v. State, 619 So.2d 279 (Fla.1993) (affirming death sentence where sole aggravator was prior second-degree murder).22 The present case involves two prior first-degree murders. Thus, the first prong of the above standard appears to be satisfied.
The trial court additionally found three statutory and many nonstatutory mitigators, including a brutal childhood and vast mental health mitigation. This Court has reversed the death penalty in cases where the extent of mitigation was comparable or less, even in the face of significant aggravation. See, e.g., Robertson v. State, 699 So.2d 1343 (Fla.1997); Nibert v. State, 574 So.2d 1059 (Fla.1990); Fitzpatrick v. State, 527 So.2d 809 (Fla.1988). In addition to the mental health mitigation in the present case, the defendant was twenty years old at the time of the crime, and the present crime and the prior сapital felonies all arose from a single brief period of marital crisis that spanned six weeks. We
Based on the foregoing, we affirm Almeida‘s conviction and vacate his death sentence. We remand for imposition of a life sentence without possibility of parole for twenty-five years.
It is so ordered.
ANSTEAD and PARIENTE, JJ., and KOGAN, Senior Justice, concur.
HARDING, C.J., concurs in part and dissents in part with an opinion, in which WELLS, J., and OVERTON, Senior Justice, concur.
HARDING, C.J., concurring in part and dissenting in part.
I would affirm the conviction and sentence of death in this case. I disagree with the majority‘s оpinion for several reasons. First, I disagree that the trial court erred in admitting Almeida‘s taped confession. Second, I believe that the record supports a finding of CCP. Finally, I do not think that the death sentence is disproportionate.
I. Almeida‘s confession
I disagree with the majority‘s conclusion that the trial court erred in admitting Almeida‘s taped statement. For the reasons expressed in my dissenting opinion in Almeida v. State, 737 So.2d 520 (Fla. 1998), I would find that Almeida‘s statement was admissible under Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), and State v. Owen, 696 So.2d 715 (Fla.1997).
II. CCP
I also disagree with the majority‘s conclusion that the cold, calculated, and premeditated aggravating factor (CCP) should be stricken. In a well-reasoned sentencing order, the trial judge set forth the basis for finding CCP in this case:
The evidence at trial revealed that on November 14, 1993, the manager of Higgy‘s restaurant and bar grabbed a beer from the defendant to prevent him from drinking because he was underage. Mr. Ingargiola had previously kicked the defendant out of the restaurant for drinking alcohol and told him not to do it again. The defendant, wanting to beat up the victim, attempted to lure him outside by claiming that he had identification in his car; however, Mr. Ingargiola refused to accompany him to the parking lot. The defendant and his friend, Louis Salmon, left the restaurant, at which time Mr. Salmon tried to calm the enraged defendant. They then drove to Regas’ restaurant, where they picked up two other friends. Mr. Almeida drove the three men to Mr. Salmon‘s house, where Mr. Salmon spent over an hour and a half attempting to calm down the very angry defendant and try to talk him out of killing Mr. Ingargiola. The defendant insisted that Mr. Salmon could not talk him out of doing this. Finally, the defendant left Mr. Salmon‘s house and dropped off the other two men at their respective homes. He then, in his own words, got drunk and returned to Higgy‘s, where he waited in the parking lot until Mr. Ingargiola finished closing up the restaurant. As the victim walked to his car, the defendant drove by and shot him at close range with a Magnum .44 revolver loaded with Black Talon ammunition.
The very fact that the defendant returned to the restaurant and waited until 4:30 in the morning for the victim to
emerge so that he could shoot him provides ample support for the finding that the homicide was committed in a cold, calculated and premeditated manner. The defendant literally was lying in wait for his victim, thereby evidencing the absence of frenzy or panic as well as supporting the calculating nature of the crime. In addition, the Court finds the “heightened premeditation” element exists from the fact that despite Mr. Salmon‘s best efforts to dissuade the defendant from committing the crime, Mr. Almeidа insisted that he would not be talked out of killing Mr. Ingargiola. The defendant told Dr. Macaluso, one of the examining psychiatrist, that he felt Mr. Ingargiola deserved to be shot. He also bragged to several co-workers at Regas’ about committing the killing and how he and an underage co-worker could now drink beer at Higgy‘s. Yet in his statement to the police, the defendant claimed there was no reason for killing Mr. Ingargiola. None of these statements comports with a moral or legal justification for the crime, particularly when this was the third homicide the Defendant committed within a six week period. Therefore, the Court finds no claim of justification or excuse that would rebut the otherwise cold and calculating nature of this homicide. Banda v. State, 536 So.2d 221 (Fla.1988).
Based on the foregoing, the Court finds that this aggravating factor exists beyond and to the exclusion of every reasonable doubt.
I agree with the trial judge that there was sufficient evidence to find beyond a reasonable doubt that the CCP aggravating factor exists.
In Jackson v. State, 648 So.2d 85, 89 (Fla.1994), this Court outlined the necessary elements for a finding of CCP: (1) the murder was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage, (2) the defendant had a careful plan or prearranged design to commit murder before the killing, (3) the defendant exhibited heightened premeditation, and (4) the defendant had no pretense of legal or moral justification. In striking CCP, the majority opinion states:
The present record shows the following: (1) Several witnesses testified that Almeida had calmed down in the hours following the incident at Higgy‘s and evinced no plan to commit the crime; (2) the trial court found that Almeida had a history of аlcohol abuse and had been drinking on the night of the crime; (3) Almeida in his own statement to police described the killing as an impulsive act committed shortly after he had left his friends and got drunk by himself; (4) the trial court found that both mental mitigators had been established, i.e., that Almeida was extremely disturbed at the time of the crime, and that his capacity to appreciate the criminality of his conduct was substantially impaired; (5) the record is replete with testimony of witnesses attesting to Almeida‘s lack of impulse control due to his brutal childhood in Brazil; (6) witnesses established that Almeida was particularly unstable at the time of the crime because of his recent marital separation and pending divorce. In light of these circumstances, we conclude that the record evidence is legally insufficient to support a finding of heightened premeditation. Accordingly, the court erred in finding CCP.
I respectfully disagree. The majority‘s bare-boned analysis of this issue is neither pertinent to the matter of heightened premeditation nor is it supported by case law.
In Clark v. State, 609 So.2d 513, 515 (Fla.1992), this Court stated, “To establish the heightened premeditation necessary for a finding of [CCP], the State must demonstrate that the defendant had a careful plan or prearranged design to kill.” The facts in the present case reveal that after being kicked out of the restaurant, Almeida attempted to lure the victim outside in order to confront him. When this
III. Proportionality of the Death Sentence
Finally, I disagree with the majority that the death penalty is disproportionate in this case. The trial judge found that two aggravating factors were established in this case: (1) CCP and (2) the defendant was previously convicted of another capital felony (the Leath and Counts murders). The trial judge found that three statutory mitigating factors were established in this case and gave each little weight: (1) age of the defendant, (2) influence of extreme or emotional disturbance, and (3) impaired capacity to appreciate criminality of conduct and conform conduct to the requirements of the law. The trial judge found that eight nonstatutory mitigating factors were established and assigned them somе, little, or very little weight.
In reaching its conclusion regarding proportionality, the majority did not consider CCP. As stated earlier, I disagree with the majority that CCP was not established in this case. Even without CCP, I still would find that the death penalty is proportionate in this case. This Court has previously upheld the death penalty in single aggravator cases. See Ferrell v. State, 680 So.2d 390, 391 (Fla.1996); Duncan v. State, 619 So.2d 279, 284 (Fla.1993). In Ferrell, this Court stated:
In the present case, although the court found a number of mitigating circumstances established, it assigned little weight to each. The lone aggravating circumstance, on the other hand, is weighty. The prior violent felony Ferrell was convicted of committing was a second-degree murder bearing many of the earmarks of the present crime....
680 So.2d at 391. Similarly, in the present case, although the court found that a number of mitigating circumstances were established, it assigned little or very little weight to each, with the excеption of the nonstatutory mitigator of difficult childhood, which was given some weight. In contrast, the aggravator in question is very weighty, especially in light of the fact that both previous first-degree murders were committed within five weeks of the present case.
If the majority believes that the trial court abused its discretion in weighing the aggravators and mitigators, then this should be explicitly stated in the opinion. But based on this record and the trial court‘s findings in the sentencing order, it cannot be said that the death penalty is disproportionate.
Accordingly, I would affirm the conviction of guilt and sentence of death in this case.
WELLS, J., and OVERTON, Senior Justice, concur.