IN THE SUPREME COURT OF FLORIDA

CASE NO. 84,700

FERNANDO FERNANDEZ,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

______________________________________________________________

AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTHJUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA

CRIMINAL DIVISION_______________________________________________________________

BRIEF OF APPELLEE

ROBERT A. BUTTERWORTHAttorney GeneralTallahassee, Florida

RANDALL SUTTON Assistant Attorney GeneralFlorida Bar No. 0766070Office of Attorney GeneralDepartment of Legal AffairsRivergate Plaza -- Suite 950444 Brickell AvenueMiami, Florida 33131PH. (305) 377-5441FAX (305) 377-5654

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TABLE OF CONTENTS

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . vi

POINTS ON APPEAL . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . 2 A. INTRODUCTION . . . . . . . . . . . . . . . . . . . 2 B. GUILT PHAS E . . . . . . . . . . . . . . . . . . . . 3 C. PENALTY PHASE . . . . . . . . . . . . . . . . . . 15

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . 26

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 30 I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE PROSECUTOR’S OPENING STATEMENT. . . . 30

II.THE TRIAL COURT PROPERLY DENIED DEFENDANT’S MOTION,AFTER 75 DAYS OF PREPARATION TIME HAD ALREADY BEENALLOWED, FOR AN ADDITIONAL CONTINUANCE. . . . . . 33

III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH. . . . . . . . . . . . . . . . . . . . . 38

1. Defendant’s Age . . . . . . . . . . . . . . 39

2. Dures s . . . . . . . . . . . . . . . . . . . 41

3. No Significant Criminal History . . . . . . 43

4. Nonstatutory Mitigation . . . . . . . . . . 44

(a) Family History . . . . . . . . . . . . 45

(b) Psychological/Educational History . . . 47

(c) Remors e . . . . . . . . . . . . . . . . 48

(d) Cooperation with the Authorities . . . 50

(e) Potential for Rehabilitation . . . . . 51

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(f) Alternative Sentence . . . . . . . . . 52

(g) Abreu’s Life Sentence . . . . . . . . . 55

5. Harmless Erro r . . . . . . . . . . . . . . . 57

6. Proportionality . . . . . . . . . . . . . . 58

(a) Proportionality as to Defendant’s Culpability . . . . . . . . 59

(b) Proportionality as to Similar Cases . . 63

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 68

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 68

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TABLE OF CITATIONS

CASES PAGE

Amazon v. State ,487 So. 2d 8 (Fla. 1986) . . . . . . . . . . . . . . . . . . 40

Barwick v. State ,660 So. 2d 685 (Fla. 1995) . . . . . . . . . . . . . . . . . 55

Booker v. State ,397 So. 2d 910 (Fla. 1981) . . . . . . . . . . . . . . . . . 44

Cabana v. Bullock ,474 U.S. 376 (1986) . . . . . . . . . . . . . . . . . . . . 62

Campbell v. State ,571 So. 2d 415 (Fla. 1990) . . . . . . . . . . . . . . . 38, 53

Cardona v. State ,641 So. 2d 361 (Fla. 1994) . . . . . . . . . . . . . . . . . 56

Carter v. State ,576 So. 2d 1291 (Fla. 1989) . . . . . . . . . . . . . . 48, 64

Coleman v. State ,610 So. 2d 283 (Fla. 1992) . . . . . . . . . . . . . . . . . 57

Colina v. State ,634 So. 2d 1077 (Fla. 1994) . . . . . . . . . . . . . . . . 57

Cook v. State ,581 So. 2d 141 (Fla. 1991) . . . . . . . . . . . . . . . 64, 67

Cooper v. State ,492 So. 2d 1059 (Fla. 1986) . . . . . . . . . . . . . . . . 40

Dailey v. State ,594 So. 2d 254 (Fla. 1991) . . . . . . . . . . . . . . . . . 32

Downs v. State ,572 So. 2d 895 (Fla. 1990) . . . . . . . . . . . . . . . . . 57

CASES PAGE

DuBoise v. State ,520 So. 2d 260 (Fla. 1988) . . . . . . . . . . . . . . . . . 63

- v -

Enmund v. Florida ,458 U.S. 782 (1982) . . . . . . . . . . . . . . . . 58, 59, 61

Fitzpatrick v. State ,437 So. 2d 1072 (Fla. 1983) . . . . . . . . . . . . . . . . 43

Freeman v. State ,563 So. 2d 73 (Fla. 1990) . . . . . . . . . . . . . . . . . 67

Garcia v. State ,492 So. 2d 360 (Fla. 1986) . . . . . . . . . . . . . . . 40, 56

Green v. State ,641 So. 2d 391 (Fla. 1994) . . . . . . . . . . . . . . . . . 55

Hannon v. State ,638 So. 2d 39 (Fla. 1994) . . . . . . . . . . . . . . . . . 57

Hartley v. State , 21 Fla. L. Weekly S391, S393 (Fla. Sept. 19, 1996) . . . . . 31

Heath v. State ,648 So. 2d 660 (Fla. 1994) . . . . . . . . . . . . . 64, 65, 66

Jackson v. State ,366 So. 2d 752 (Fla. 1978) . . . . . . . . . . . . . . . . . 57

Jackson v. State ,502 So. 2d 409 (Fla. 1986) . . . . . . . . . . . . . . . . . 59

Johnson v. State ,660 So. 2d 637 (Fla. 1995) . . . . . . . . . . . . . . . . . 46

Jones v. State ,569 So. 2d 1234 (Fla. 1990) . . . . . . . . . . . . . . . . 52

Jones v. State ,648 So. 2d 669 (Fla. 1994) . . . . . . . . . . . . . . . 39, 55

CASES PAGE

Kight v. State ,512 So. 2d 922 (Fla.1987) . . . . . . . . . . . . . . . . . 46

King v. State ,623 So. 2d 486 (Fla. 1993) . . . . . . . . . . . . . . . . . 32

Kokal v. State ,

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492 So. 2d 1317 (Fla. 1986) . . . . . . . . . . . . . . . . 40

Krawczuk v. State ,634 So. 2d 1070 (Fla. 1994) . . . . . . . . . . . . . . . . 55

Lara v. State ,464 So. 2d 1173 (Fla. 1985) . . . . . . . . . . . . . . . . 46

Lowe v. State ,650 So. 2d 969 (Fla. 1994) . . . . . . . . . . . . . 55, 64, 66

Maqueira v. State ,588 So. 2d 221 (Fla. 1991) . . . . . . . . . . . . . . . . . 43

Merck v. State ,664 So. 2d 939 (Fla. 1995) . . . . . . . . . . . . . . . . . 40

Mills v. State ,462 So. 2d 1075 (Fla. 1985) . . . . . . . . . . . . . . 48, 52

Nibert v. State ,574 So. 2d 1059 (Fla. 1992) . . . . . . . . . . . . . . 39, 50

Nixon v. State ,572 So. 2d 1336 (Fla. 1990) . . . . . . . . . . . . . . . . 53

Occhicone v. State ,570 So. 2d 902 (Fla. 1990) . . . . . . . . . . . . . . . 30, 31

Palmes v. Wainwright ,460 So. 2d 362 (Fla. 1984) . . . . . . . . . . . . . . . . . 63

Pettit v. State ,591 So. 2d 618 (Fla. 1992) . . . . . . . . . . . . . . . . . 55CASES PAGE

Porter v. State ,564 So. 2d 1060 (Fla. 1990) . . . . . . . . . . . . . . . . 64

Pulley v. Harris ,465 U.S. 37 (1984) . . . . . . . . . . . . . . . . . . . . . 58

Quince v. State ,414 So. 2d 185 (Fla. 1982) . . . . . . . . . . . . . . . . . 44

Robinson v. State ,610 So. 2d 1288 (Fla. 1992) . . . . . . . . . . . . . . . . 57

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Rogers v. State ,511 So. 2d 526 (Fla. 1987) . . . . . . . . . . . . . . . 48, 53

Sireci v. State ,587 So. 2d 450 (Fla. 1991) . . . . . . . . . . . . . . . . . 42

Slawson v. State ,619 So. 2d 255 (Fla. 1993) . . . . . . . . . . . . . . . 39, 44

Smith v. State ,641 So. 2d 1319 (Fla. 1994) . . . . . . . . . . . . 64, 65, 66

State v. Bloom ,497 So. 2d 2 (Fla. 1986) . . . . . . . . . . . . . . . . . . 56

State v. Henry ,456 So. 2d 466 (Fla. 1984) . . . . . . . . . . . . . . . . . 64

Stein v. State ,632 So. 2d 1361 (Fla. 1994) . . . . . . . . . . . . . . . . 31

Steinhorst v. Singletary ,638 So. 2d 33 (Fla. 1994) . . . . . . . . . . . . . . . . . 56

Tafero v. State ,403 So. 2d 355 (Fla. 1981) . . . . . . . . . . . . . . . . . 57

Taylor v. State ,630 So. 2d 1038 (Fla. 1993) . . . . . . . . . . . . . . . . 48CASES PAGE

Thompson v. State ,648 So. 2d 692 (Fla. 1994) . . . . . . . . . . . . . . . . . 55

Tison v. Arizona ,481 U.S. 137 (1987) . . . . . . . . . . . . . . . . . . 62, 63

Troedel v. State ,462 So. 2d 392 (Fla. 1984) . . . . . . . . . . . . . . . . . 57

Tyson [sic] v. Arizona ,107 S. Ct. 1676 (1987) . . . . . . . . . . . . . . . . . . . 60

Valdes v. State ,626 So. 2d 1316 (Fla. 1993) . . . . . . . . . . . . . . . . 35

Valle v. State ,581 So. 2d 40 (Fla. 1991) . . . . . . . . . . . . . . . 46, 47

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Van Poyck v. State ,564 So. 2d 1066 (Fla. 1990) . . . . . . . . . . . . . . . . 63

Walls v. State ,641 So. 2d 381 (Fla. 1994) . . . . . . . . . . . . . . . . . 39

Walton v. State ,547 So. 2d 622 (Fla. 1989) . . . . . . . . . . . . . . . . . 44

Washington v. State ,362 So. 2d 658 (Fla.1978) . . . . . . . . . . . . . 44, 45, 51

Watson v. State ,651 So. 2d 1159 (Fla.1994) . . . . . . . . . . . . . . . . . 32

Watts v. State ,593 So. 2d 198 (Fla. 1992) . . . . . . . . . . . . . . . . . 67

Wickham v. State ,593 So. 2d 191 (Fla. 1991) . . . . . . . . . . . . . . . 58, 65

Wike v. State ,596 So. 2d 1020 (Fla. 1992) . . . . . . . . . . . . . . 35, 36CASES PAGE

Williams v. State ,492 So. 2d 1501 (Fla. 1986) . . . . . . . . . . . . . . . . 32

Williamson v. State ,511 So. 2d 289 (Fla. 1987) . . . . . . . . . . . . . . . . . 57

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POINTS ON APPEAL(Restated)

I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE PROSECUTOR’S OPENING STATEMENT.

II.THE TRIAL COURT PROPERLY DENIED DEFENDANT’SMOTION, AFTER 75 DAYS OF PREPARATION TIME HADALREADY BEEN ALLOWED, FOR AN ADDITIONALCONTINUANCE.

III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH.

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STATEMENT OF THE CASE AND FACTS

A. INTRODUCTION

Defendant was charged, along with codefendants Pablo San

Martin, Leonardo Franqui, Ricardo Gonzalez, and Pablo Abreu, in an

indictment filed on February 4, 1992, in the Eleventh Judicial

Circuit in and for Dade County, Florida, case number 92-2141(A),

with: (1) the premeditated or felony murder with a firearm of

Steven Bauer, a law enforcement officer acting in the course of his

duties; (2) the armed robbery with a firearm of the Kislak Bank

and Michelle Chin; (3) the aggravated assault with a firearm of

Michelle Chin; (4) the aggravated assault with a firearm of

LaSonya Hadley; (5) the unlawful possession of a firearm during

the commission of a felony; (6) the grand theft of the motor

vehicle of Rafael Armengol; (7) the burglary of the motor vehicle

of Rafael Armengol; (8) the grand theft of the motor vehicle of

Elias Cantero; and (9) the burglary of the motor vehicle of Elias

Cantero. Counts (3) and (5) were nolle prossed before trial. (R.

1-6).

Abreu pled guilty prior to trial, and the defendants moved to

sever their trials from that of the remaining codefendants based

upon their allegedly inconsistent statements given to the police.

(R. 89). The motion was granted as to Defendant, and the court

ruled that the case would be tried jointly with two juries, (A) for

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Fernandez and (B) for the remaining defendants. (R. 170-76).

B. GUILT PHASE

On the morning of January 3, 1992, Dorett Ellis went to the

Kislak National Bank in North Miami to make a deposit. (T. 1111).

She arrived shortly before the bank opened, around 7:55 and waited

in her car, a red Cougar, in the drive through lane. There was a

car in front of her with two men in it. There was also a car on

the left side with two men in it. Then an officer wearing a police

uniform walked out the door with the tellers. Two men jumped out

of the cars, and ran to the front, firing a gun. They jumped out

of the car and fired three or four shots simultaneously. (T. 1113,

1115). The officer went down. The men ran toward the officer and

then they ran back to the car and drove off in a southerly

direction. (T. 1114).

Elijah Battle was seated on the left side of the northbound

bus on 7th Avenue when he heard three gunshots. (T. 1126-27). He

looked out the window to the west and saw an older Chevrolet come

screeching out. (T. 1128). Battle saw the driver in the car. He

could not see the passenger side of the car from up in the bus.

(T. 1130). The car turned southbound, and then turned right, to

the west. (T. 1131). Battle also saw a red Cougar come out right

after the Chevy. (T. 1133).

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Later in the trial, Elijah Battle was recalled and testified

that prior to trial he was never shown any photos. After

testifying, he informed the prosecutor that he had seen the driver

of the Caprice in court. Battle identified Franqui as the driver.

In court was the first time he had seen Franqui since the murder.

(T. 1993-94).

LaSonya Hadley was a drive-through teller at the Kislak

National Bank branch at 134th Street and 7th Avenue. (T. 1150).

She arrived at work each morning at 7:45. When her coworker

Michelle arrived, they would get the money from the vault and go to

the outside booths. (T. 1151). They kept $15,000-20,000 in a cash

drawer. They would wait for the police officer to come and take

them outside. (T. 1152). The police officer always dressed in a

North Miami Police Department uniform with patches on his shirt and

a gun on a belt holster. The officer would look out the small

window on the door to check if it was safe and then they would go.

(T. 1153). The officer would walk them to the drive through booth

and make sure the door was locked. (T. 1154). He would give them

a few minutes to set up, and then he would move the chains to let

the cars in.

Officer Steven Bauer was the officer who always accompanied

them on Fridays. She had worked with Bauer for about a year and a

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half. Bauer was great to work with; he was funny and made Friday,

a long day, fun. On Friday she worked 8 a.m. to 6 p.m. in the

drive through. (T. 1155). Bauer worked the whole day. (T. 1156).

Hadley’s coworker Michelle Chin Watson detailed the same standard

morning procedures as Hadley. (T. 1166-67)

On January 3, 1992, the weather was sunny. (T. 1156).

Michelle arrived around 7:50 a.m. They went to the vault and got

their cash trays, and then told Officer Bauer they were ready to

go. Bauer commented that it was going to be a busy day. It was

going to be busy because it was a “Social Security Friday.” Bauer

went to the door to check on the parking lot. (T. 1157). Then he

unlocked the door. Hadley went first, then Michelle, then Bauer.

He was singing a little song: “Jesus, Jesus, it’s going to be a

busy day for you guys.” As Hadley was putting the key into the

lock to the booth, she heard people getting out of a car. She

opened the door and dived in. Then she opened the door to see

where Bauer was. He was trying to get his gun out of the holster.

There were two men coming toward her from the cars. When they drew

closer, she saw four men, all of whom had guns. Bauer tried to get

his gun out. Hadley dived for the booth. She went for the alarm,

and laid there waiting, because she still had her money in her

hand. Then she heard three or four shots. She heard Bauer cry

out. He said he was shot. She got up and went back outside. She

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picked up his head and put it in her lap. (T. 1158-59, (T. 1162-

63). He asked her if she was all right. (T. 957). Hadley asked

Bauer if he was all right, and he said not to worry because he was

only shot in the leg. She realized that there was too much blood;

that it had to be more than that. She was kneeling inside the

drive through area, with Bauer resting in her lap from the waist

up. He bled all over her. Then Michelle came over and the branch

manager arrived, and they waited for the police to come. (T.

1160). After a few minutes, Bauer stopped responding to questions.

Then the police arrived and took over and took her aside. When she

saw the men come from the cars with guns, she was scared. They did

not take her money. (T. 1162).

Watson also verified that on the date in question Steven Bauer

was the officer who escorted them. He had a uniform with patches

and a gun on his belt. (T. 1167). On January 3, 1992, Bauer

opened the back door as usual. They went outside, Hadley first,

then Watson, then Bauer, who closed the door. When they were

walking forward, Watson heard a yell from some men in the drive

through. (T. 1169). She continued to walk toward the drive

through. She kept walking until she heard shots. Then she

prostrated herself and set the cash drawer down in front of her.

(T. 1170). Someone came and took the cash drawer from her. After

she heard the car drive away, she turned to where Bauer was. She

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walked over to him and heard him say “Oh, God.” (T. 1171). He

also asked if they were okay. He talked about where he had been

shot and tried to get them not to worry about him. (T. 1172). She

felt scared while it was happening. She did not give anyone

permission to take the cash drawer. (T. 1173).

When the police arrived, Bauer was still alive, and they tried

to prep him for Rescue, taking off his clothing and weapons, and

yelling at him and trying to keep him warm. His gun was already

out of the holster, lying in a pool of blood by his head. Bauer

was in shock and pretty nervous. (T. 1175-79, 1185-86). Bauer’s

gunbelt, watch, knife, handcuffs, and hand-held radio were also at

the scene. Bauer’s weapon had 15 rounds in it, which was its

capacity. (T. 1249-55). The gun had not been fired. (T. 1261).

Two vehicles were located two blocks west of the bank. The

vehicles were both gray Chevrolet Caprices. Both engines were

running, but neither had keys in the ignition, and had been broken

into. (T. 1194). There were no people present. (T. 1195). There

was an alley that ran the two blocks from where the cars were to

the bank parking. (T. 1196).

Rafael Armengol testified that his 1986 Chevrolet was stolen

from the parking lot of his apartment building at 4th Street and NW

1 A babalao is like a priest in the Santaria faith. (T.1404).

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72 Avenue on January 2, 1992. (T. 1308-11). Elias Cantero

testified that his gray Chevrolet Caprice was stolen from his place

of employment, Miami Technical College at 7601 W Flagler Street on

January 2, 1992. (T. 1314-17).

On January 3, 1992, Defendant was at the home of Claudio Prado

watching television. An ad came on the television regarding the

death of a police officer. Defendant told Prado that he was one of

the people involved in the case. (T. 1405). Defendant told Prado

he wanted to see a babalao. 1 (T. 1406). Prado took him to see a

babalao named Lazaro Hernandez who lived nearby. (T. 1406). The

television was on there, and after they came in, the ad regarding

Bauer’s death came on again and Defendant became agitated. (T.

1408).

Lazaro Hernandez, the babalao, saw Defendant on January 3,

1992. (T. 1426-27). Defendant became very nervous when the news

about the robbery came on the television. (T. 1427). The news

showed a car that Defendant told Hernandez was involved in the

robbery. (T. 1428). At Defendant’s request, the babalao gave

Defendant a bracelet and performed a ritual to protect him. (T.

1436). Defendant came to him seeking protection from justice. (T.

2 Presumably he was referring to codefendant Franqui.

3 Presumably he was preferring to codefendant RicardoGonzalez.

4 Maritza was Defendant’s girlfriend

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1452).

Sanchez met Defendant at the TGK jail facility around May of

1992. (T. 1457-58, 1497). Sanchez and Defendant became friendly

while Sanchez was a trustee there. (T. 1497). Defendant told

Sanchez that a black friend had spoken to him about a robbery plan

and that Defendant then “stole” the robbery so he could do it on

his own. (T. 1498). Defendant told Sanchez that he had bought the

.38 and the 9mm used in the robbery from Maritza’s daughter’s

boyfriend. (T. 1499). Defendant also told Sanchez that there were

three cars involved: one belonged to “Frank” 2 and the other two

were stolen. Defendant stole the cars himself, so they could use

them to rob the bank. Defendant told Sanchez that there were five

people involved in the robbery including Defendant. The black

friend was not there. He said that “Frank” and “Rick” 3 were

supposed to get out and do the actual taking. Defendant was one of

the drivers of one of the stolen cars. (T. 1501-02). After the

robbery they drove the stolen cars to where “Frank’s” car was and

then went to Maritza’s 4 house, where they divided the money and

then split up. (T. 1502-03). Defendant bought Maritza a waterbed

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with part of the money, and also rented an apartment with part of

it.

Defendant told also Sanchez that he and Maritza went to a

babalao for a charm to protect Defendant from the police. (T.

1504). The babalao subsequently turned Defendant in. (T. 1504).

Sanchez contacted the police by himself. (T. 1506). Sanchez did

not receive any deal or reward for testifying. (T. 1509). Sanchez

testified (on cross) that Defendant did not appear to be sorry for

the crimes he had committed. (T. 1516).

Gary Cromer testified that at the end of 1991, Cromer’s knew

someone whose girlfriend worked at the Kislak National Bank.

Cromer and this friend devised a plan to rob the bank. (T. 1464).

The plan was to rob the drive-through tellers. Prior to January

1992, Cromer shared the plan with Defendant. (T. 1465). By that

time Cromer’s friend had decided not to participate in the robbery

plan. Cromer had meetings with Defendant at the home of

Defendant’s girlfriend, Maritza. (T. 1466). The plan was to

snatch the trays from the tellers at gunpoint when the came out to

the drive through. After that, Defendant met a couple of times

with Cromer at his house. (T. 1467). They also met at an Amoco in

Carol City. Defendant had four or five Spanish-speaking friends

with him in a van and they all wanted to see the bank. Cromer

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would only go if his friend was allowed to come, but they said no,

so Cromer did not go. (T. 1468). Later that evening Defendant and

his friends returned, and Cromer went with them and showed them the

bank. Cromer showed them which door the tellers came out of, and

where the tellers walked. (T. 1470). Cromer did not tell them

that anyone accompanied the tellers. (T. 1471). Although Cromer

expected to be a part of the robbery, he had no contact with

Defendant or his friends between the time he showed them the bank

and the day the robbery occurred. Cromer did not participate in

the actual robbery. (T. 1472). Cromer did not make the plan

himself. He was present when it was made. (T. 1490). He did not

intend to participate in the robbery when he showed Defendant the

bank. (T. 1490). Only Defendant was present for the planning

meetings. Defendant’s friends were not. (T. 1493). Cromer did

not know any of the others and would not have told them about the

robbery or showed them where the bank was if Defendant was not

there. (T. 1494).

Technician Thomas Charles examined Franqui’s Regal on January

18, 1992. The car had been repainted white and appeared to

originally have been blue.

Metro-Dade fingerprint technician Richard Laite compared

various latents with standards of the defendants. He determined

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that of eight latents of value from the Caprice with the tag number

FIV 13C, five were matches. (T. 1974-75). Prints from Defendant

were on the outside right front door, the outside left front

window, the rear edge of the driver’s window frame, and the outside

of the hood. (T. 1976). There was one match with Franqui, from

the outside left front door. (T. 1976). None of the prints from

the other Caprice (tag number JMI 86J) matched any of the

defendants. (T. 1977).

Firearms expert Robert Kennington tested two guns recovered

from the Miami River. The first was a .357 magnum, capable of

firing .38 projectiles. The other was a 9mm semiautomatic. (T.

2019-21). Kennington also examined two projectiles and some

fragments that were taken from Bauer’s body and submitted to him by

the medical examiner’s office. (T. 2024). “A” was a .38; “B” was

a 9mm bullet. (T. 2027). Kennington determined that the “A”

bullet was fired from the .357 found in the river. (T. 2028). The

“B” bullet was fired from the 9mm found in the river. (T. 2029).

Bullet “C” from the scene was also fired from the .357. (T. 2030).

All three matches were to the exclusion of any other gun in the

world. (T. 2030). Fragments “D” were consistent with the 9mm, but

were insufficient to positively exclude their having been fired by

any other 9mm. (T. 2031). Casing “M” was conclusively fired by

the 9mm from the river, to the exclusion of any other gun in the

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world. (T. 2032). “A” and “C” were separate bullets. Therefore

the .357 was fired twice at the scene. Likewise, fragments “D”

were not part of bullet “B,” which was whole. (T. 2032).

Therefore a minimum of four shots were fired at the scene. (T.

2034).

Forensic Pathologist Dr. Jay Barnhart of the Dade County

Medical Examiner’s Office, performed the autopsy on Bauer on

January 3, 1992. (T. 2039). Bauer had a gunshot wound to his left

thigh. There was an entrance wound and no associated exit. (T.

2041). Bullet “B” was located in Bauer’s hip. (T. 2051).

An additional gunshot wound entered the back of Bauer’s neck

and went downward through his heart and lodged where the ribs

joined with the abdominal organs. (T. 2046). This was bullet “A”.

(T. 2052).

Wound “B” would not have been fatal, but would have been quite

painful. Wound “A” was fatal standing alone. The cause of death

was gunshot wounds. (T. 2052-53).

Wound “A” was not consistent with Bauer and the shooter

standing and facing each other. It was consistent with Bauer being

first shot in the leg, and then falling either face down or back

5 Certain proceedings involving Defendant were not includedin the record on appeal. The State has contemporaneously moved tosupplement the record with the relevant excerpts from thetranscripts prepared for the appeal taken by Defendant’scodefendant, Leonardo Franqui, which is presently pending beforethe Court in Franqui v. State , No. 84,701. References will be to“Fr. T. ___.”

- 14 -

down and then being shot in the back of the neck. (T. 2054-55).

The State rested, (T. 2055), the defense rested without

presenting a case, (T. 2096), and after closing argument and

instruction, the jury retired to consider its verdict. (Fr. T. 5

1976-89, 2007-21) The jury returned a verdict of guilty as charged

on all counts. (Fr. T. 2193, 451-53).

C. PENALTY PHASE

At the penalty phase proceeding before the jury, the State

relied upon the evidence presented during the guilt phase trial.

(T. 2147). The defense presented the testimony of Defendant’s

parents, sister, and psychologist Gary Schwartz.

Lourdes Fernandez, age 49, was Defendant’s mother. (T. 2147).

She had been married to Defendant’s father for 27 years. They had

two children, Defendant and his sister. (T. 2148). They had lived

in Miami since 1980. (T. 2148). They lived in Atlanta for two

years, from 1983-85. (T. 2149). Defendant was 22, born in 1972.

Defendant was not particularly close to any relatives other than

- 15 -

his parents, sister, and Lourdes’s grandmother who lived with them.

(T. 2149). She died five years before trial. Defendant felt bad

at the time. (T. 2150). Defendant had problems in school and did

not like to study. He was “always” sent to the school

psychologist. Around 1986 or 1987, Defendant tried to poison

himself. (T. 2152). Defendant’s mother used cocaine for a time.

(T. 2154). She “committed the error” of telling Defendant she

would rather he used drugs at home than on the streets. In

retrospect she felt it would have been better to have given him a

stronger anti-drug message, but she was afraid of losing him at the

time. (T. 2154). Her husband was hired one time to transport some

cocaine, and got arrested. (T. 2155). She sent Defendant out to

sell a kilo of cocaine to raise the money for his father’s bond.

(T. 2156). Defendant was 14 or 15 at the time. Prior to the arrest

Defendant was not aware of his father’s involvement.

On cross, Defendant’s mother explained that she was concerned

about losing Defendant because he threatened to call HRS when she

disciplined him. (T. 2157). This started when he was about nine

years old. (T. 2158). Defendant quit school when he turned 16.

His mother told him he should stay in school. (T. 2158).

Defendant got married at that time. (T. 2160). Defendant worked

for a car dealer at that time. The “poison” was a jar of Nyquil.

(T. 2161). Defendant would exaggerate things to get attention.

- 16 -

(T. 2162).

Abundio Fernandez, Defendant’s father, testified that when

Defendant was in school he would not pay attention in class. They

were “more or less” told that he had a learning disability. (T.

2164). They sent him to a special school. (T. 2165). Abundio was

arrested for drug trafficking when Defendant was growing up. He

became involved in it because of financial problems. (T. 2165).

Abundio used cocaine in the past. He did not know whether

Defendant knew he used it. He later became aware that Defendant

was using it also, which he allowed because he thought it would be

better than using it on the street. (T. 2166). He and Defendant’s

mother decided together to allow Defendant to use cocaine. (T.

2167). They thought of telling him not to do the cocaine, but were

afraid that if they did Defendant would do it on the streets. (T.

2167). Abundio had seen Defendant crying since his (Defendant’s)

arrest. (T. 2171).

On cross, Abundio stated that even when he was put in special

classes, Defendant continually skipped school. (T. 2172). At the

time of the crime, Defendant was not living at home. He was living

with his girlfriend, Maritza. She was older than he, and had

children. (T. 2172). Defendant felt he was acting as an adult.

(T. 2173). He was working. Defendant was not in contact with his

- 17 -

parents at the time of the crime. Defendant was in jail when the

father saw him crying. (T. 2173).

Mayling Fernandez, 17, Defendant’s sister, testified that she

lived with her parents and was involved in a program for recovering

addicts. (T. 2174). She was addicted to cocaine, but had not used

any drugs since December 1992. (T. 2175). Mayling was born in

Cuba; the family, including her parents, brother and great-

grandmother, came here when she was about three years old. (T.

2175). The great-grandmother lived with them until she died in

1989. She attended to Defendant closely. (T. 2176). Both parents

worked. Defendant was 17 when the grandmother died. (T. 2177).

Defendant’s behavior changed after the grandmother died. (T.

2177). Defendant rebelled and stopped “communicating” with their

parents, stopped showing emotion. Mayling and Defendant grew apart

after the grandmother died. (T. 2178). There was very little

discipline in the house; Defendant was given a lot of freedom.

However, they were never abused. Mayling was shocked when her

father was arrested, because she did not know he was involved in

drug trafficking. (T. 2181). Mayling saw her brother crying when

he saw the news about the bank robbery. (T. 2183-84).

Maritza had a 15 or 16 year old daughter that Defendant acted

as a father figure for. (T. 2186). Defendant would act

- 18 -

aggressively toward Mayling when they were growing up, including,

on one occasion, holding her out of a window by her feet. (T.

2186).

Defendant testified that his family came to the U.S. when he

was about six or seven. Growing up was rough because they were not

a close family. (T. 2188). His grandmother was the only one he

could communicate with, who understood him. (T. 2189). He felt

very alone when she died. (T. 2189). As time went by he got over

it. (T. 2190). In addition to cocaine, Defendant also smoked

marijuana. He started using marijuana first, when he was about 14.

He thought it was “cool” at the time. He parents knew, but they

never told him to stop. (T. 2191). Defendant went to school

through the seventh grade. He always felt he had a hard time

learning. (T. 2193). Defendant could read some, but could not

write. (T. 2194). Defendant was arrested for “joyriding”

apparently several times, when he was a juvenile. (T. 2198).

Defendant stated that he did not meet Gonzalez or Abreu until the

day of the robbery. He had met San Martin a few days earlier. He

had known Franqui for six to eight months. He claimed to be afraid

of Franqui, “in a way,” because he had a reputation of being

violent and not caring what got in his way. (T. 2199). Defendant

allegedly tried to back out of the robbery the morning of the

crime. At that point he found out it was a bank robbery, and did

- 19 -

not want to be involved in federal charges. (T. 2200). He told

Franqui that, and Franqui threatened to shoot him. (T. 2203).

This was less than two minutes before the robbery. (T. 2203). He

also threatened Defendant’s family. (T. 2204). Defendant was not

armed. (T. 2204). Only Franqui and Gonzalez had weapons. (T.

2205). Afterwards, Franqui again threatened his family. (T.

2205). After Defendant was arrested he confessed and showed the

police where the other defendants lived. (T. 2207). Defendant was

allegedly remorseful. He wrote to his grade-school teacher to

communicate those feelings. A copy was presented in court. (T.

2213). The letter essentially was to tell other students not to

make his mistakes and to stay in school and study hard. (T. 2213).

He wrote the letter before trial. Id. Defendant had had problems

with sleeping since his arrest. He had nightmares about the

electric chair -- and would wake up crying and screaming. (T.

2216).

Defendant claimed that he had never met with Cromer. (T.

2220). Defendant also denied ever telling Sanchez about the

robbery. (T. 2221). Defendant admitted stealing the two cars, but

denied that he knew they were going to be used for the robbery.

(T. 2226). Defendant admitted buying “some things for the house”

with his share of the proceeds. (T. 2230).

- 20 -

Dr. Gary Schwartz, a forensic psychologist, met with Defendant

on three occasions. (T. 2249). He obtained a family history and

conducted standardized testing. (T. 2250). He reviewed medical

records from Mercy, Jackson Memorial, and Baptist hospitals. (T.

2250). He also reviewed Defendant’s records from the Dade County

school system, and from a school in Georgia. (T. 2251). Schwartz

administered the Ohio Test of Literacy first, because certain

intelligence tests required certain reading levels to be accurate.

(T. 2253). Defendant tested slightly below the fifth grade level.

On the WAIS-R, defendant scored a full scale IQ of 75. (T. 2255).

A 75 IQ is in the borderline range. (T. 2256). Defendant did not

have any significant neurological deficiencies, i.e. , he did not

suffer from any brain damage. (T. 2258). Defendant appeared to

have a learning disability, based on the school records and

corroborated by the WAIS and the literacy tests he was given. (T.

2258). Defendant was left back in the third and sixth grades due

to reading deficits. Defendant was also disruptive. Schwartz

attributed this to acting out after being teased because he was

unable to keep up with the other students. The school records

indicated that he was in an emotionally handicapped class for

years. (T. 2259). Defendant’s medical records corroborated the

suicide attempt. (T. 2260). Defendant told Schwartz that he began

using cocaine at around 15. He said that his parents told him not

to use drugs, but if he was going to, to use them at home. (T.

- 21 -

2261). One hospital report diagnosed Defendant as bipolar. (T.

2262). Schwartz felt that Defendant suffered from a personality

disorder. (T. 2267). Also consistent were impulsive behavior,

irritability, anxiousness, and nervousness. Suicide gestures and

feelings of boredom would also be quite common. (T. 2268).

On cross Schwartz conceded that difficulty sleeping,

anxiousness, and depression would also be not unusual for someone

facing either life imprisonment or the death penalty. (T. 2273).

Defendant’s suicide attempt with cough syrup appeared to have been

more of an attention-getting device than a real attempt to kill

himself. (T. 2274). It was pointed out that the school records

indicated that Defendant had numerous absences, in one instance, 40

days in a row. The doctor conceded that this would have an effect

on what Defendant learned. (T. 2275). Defendant did not suffer

from any major mental illness. (T. 2278). Defendant also had

antisocial tendencies. (T. 2280).

The court informed the jury of codefendant Abreu’s life

sentence (T. 2292). After deliberation, the jury recommended a

sentence of death by a vote of 7-5. (Fr. T. 3133).

On September 30, 1994 a sentencing hearing was held before the

court. (Fr. T. 3113). Defendant testified and requested mercy so

- 22 -

that he could help prevent other kids from going wrong. He also

reiterated his claim of duress by Franqui. (Fr. T. 3135-36).

The State called Hialeah Detective Albert Nabut, who had

interviewed Defendant regarding the murder of Raul Lopez and the

attempted murder of the Cabanases in Hialeah. (Fr. T. 3138).

Defendant initially denied any knowledge of the crime. (Fr. T.

3139). Nabut spoke with Defendant again a few days later, and at

that time he agreed to discuss the case. Defendant stated that he

learned of the Cabanases through his father. (Fr. T. 3140). A

friend of Defendant’s father’s, Tuia, had told him that the

Cabanases carried a lot of cash. (Fr. T. 3141). He also learned

about their routine from Tuia. Defendant conveyed this information

to Franqui, San Martin, and a third person. The four of them went

to the shopping center where the Cabanases had their check-cashing

business, and Defendant pointed out Danilo Cabanas and his vehicle,

and that they carried a lot of cash to and from the concern. (Fr.

T. 3141). Defendant said that he told Franqui that “it would be

okay” if they wanted to give Defendant some of the money if the

robbery was successful. (Fr. T. 3142).

On October 11, 1994 the trial court pronounced sentence. (Fr.

T. 3152-3215). The trial court concluded that the State had

established three factors in aggravation: (1) Defendant’s multiple

prior violent felonies; (2) that the murder was committed during

- 23 -

the course of a robbery, which the court merged with the pecuniary

gain aggravator; (3) that the murder victim was a law enforcement

officer in the course of his official duties, merged with the avoid

arrest aggravator. The court gave the second circumstance great

weight. (R. 542-43).

The trial court found that no statutory mitigating

circumstances existed. (R. 544-48). Of several nonstatutory

mitigating circumstances proffered by the defense, the court found

that Defendant had proven two: (1) his family history, and (2) his

cooperation with the authorities. The court accorded these

mitigators little weight. (R. 549-51) The court specifically

conducted an “Enmund-Tyson analysis” and concluded that Defendant

was a major participant in the crime, intended lethal force to be

used, and had exhibited a reckless indifference to human life. (R.

552-54). In conclusion, the court found that the aggravators

outweighed the mitigators and sentenced Defendant to death. (R.

555-56).

This appeal followed.

- 24 -

SUMMARY OF THE ARGUMENT

1. The prosecutor’s brief reference in opening statement to

the song the murder victim was singing and to the defendant as a

robber and murderer were not improper where both statements were

supported by the evidence adduced, without objection, at trial. As

such the trial court properly denied Defendant’s motion for

mistrial. Moreover, any error would be harmless beyond a

reasonable doubt in view of the overwhelming evidence of

Defendant’s guilt.

2. The trial court did not abuse its discretion in refusing

a defense continuance of the penalty phase where the defense team

had had 2½ years to prepare before trial, and three months between

the verdict and the penalty phase, particularly where the defense

was given additional money and time to obtain and present

additional evidence to the trial court and never did.

3. The trial court properly sentenced Defendant to death.

(i) The trial court properly rejected Defendant’s age of

19 as mitigating where there was no evidence that Defendant was

particularly immature.

- 25 -

(ii) The trial court properly rejected Defendant’s claim

that he participated in the robbery and murder under extreme duress

where the evidence, including defendant’s own statements to others,

contradicted Defendant’s testimony, which the trial court found to

be disingenuous.

(iii) The trial court properly rejected Defendant’s

contention that he had no significant history of criminal activity

in view of his juvenile history of “joyriding,” cocaine

trafficking, and cocaine use.

(iv)(a) The trial court acted within its discretion in

giving Defendant’s family history little weight as a nonstatutory

mitigator.

(iv)(b) The trial court properly rejected Defendant’s

proffered mitigation concerning his psychological history where it

was “unimpressed” with the expert testimony, there was nothing

tying any problems to the crime, and in any event Defendant had no

major mental illness or organicity but had sociopathic tendencies.

(iv)(c) Defendant’s claims of remorse were belied by

his failure to accept any responsibility for the crime, and his

clear distress at his own predicament, not his victim’s. The trial

court properly rejected the claim.

- 26 -

(iv)(d) The trial court properly gave little weight to

Defendant’s alleged cooperation with the authorities, when the

“cooperation” came only after he had been connected to the crime,

and was largely an attempt at self-exculpation.

(iv)(e) The trial court properly rejected Defendant’s

claims as to his potential for rehabilitation for the same reasons

it rejected his claim of remorse, as well as on the basis of his

history of repeated criminal acts.

(iv)(f) The trial court properly rejected as

mitigating, the alternative sentence of life without parole.

Assuming such a factor could be considered “mitigation,” the trial

court properly concluded that under the facts of the case, it did

not outweigh the aggravation established.

(iv)(g) The trial court properly rejected Defendant’s

claim that his codefendant Abreu’s life sentence should be

considered in mitigation. Abreu pled guilty and agreed to testify

in both this case and the Hialeah case, and additionally was

substantially less culpable than Defendant, who initiated the

crime, stole the getaway vehicles, bought the guns, and was present

at the scene, while Abreu waited several blocks away in Franqui’s

car.

- 27 -

(v) Finally, in view of the three strong factors

established in aggravation, which Defendant has not challenged, any

error claimed with regard to the mitigators would be harmless

beyond a reasonable doubt.

(vi)(a) The trial court properly determined that the

death penalty was appropriate, despite Defendant’s role as a

nontriggerman, where it concluded that Defendant intended lethal

force be used, that he was a major participant, and that his state

of mind was one of reckless indifference for human life.

(vi)(b) Defendant’s sentence is proportional when

compared to other death-sentenced defendants.

Defendant’s convictions and sentences should be affirmed.

- 28 -

ARGUMENT

I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE PROSECUTOR’S OPENING STATEMENT.

Defendant’s first claim is that the trial court erred in

failing to grant a mistrial after the prosecutor referred to a song

the murder victim was singing before he was shot and referred to

the Defendant as a robber and murder. The prosecutor was merely

stating what she expected the evidence to show, and as such the

trial court did not abuse its discretion when it overruled

Defendant’s objections and declined to declare a mistrial.

The control of opening comments is within trial court’s

discretion. Occhicone v. State , 570 So. 2d 902, 904 (Fla. 1990).

Where the prosecutor does no more than make a good faith attempt to

outline what she expects the evidence to show, it is no abuse of

discretion to overrule defense objections to the State’s opening

remarks. Id. Here, the trial court specifically determined that

the State’s remarks were proper “presuming that in good faith those

matters which Mrs. Levine spoke of are going to be presented in

evidence.” (T. 1100). The matters referred to were in fact

presented. LaSonya Hadley testified, without defense objection,

6 As noted there was no defense objection to thistestimony. However, even if there had been, brief humanizingcomments are not improper. Stein v. State , 632 So. 2d 1361, 1367(Fla. 1994).

7 Defendant also complains, (B. 15), that the trial courtfailed to give a curative instruction. However, Defendant neverrequested one.

- 29 -

about the song which Bauer was singing. 6 (T. 1157). Furthermore,

the evidence presented unquestionably established that Defendant

was indeed a murderer and robber under the laws of this state.

Under such circumstances the trial court properly declined to grant

a mistrial. 7 Occhicone ; Hartley v. State , 21 Fla. L. Weekly S391,

S393 (Fla. Sept. 19, 1996)(prosecutor’s comment that witnesses

would not testify because defendant was the “neighborhood tough

guy” proper where supported by the evidence subsequently

introduced).

Even assuming, arguendo , that the comments were improper, they

were brief, comprising two small moments out of a week-long trial,

and not such as to vitiate the entire trial. Given the

overwhelming evidence, including Defendant’s confessions, to the

police and to others, as well as eyewitness, fingerprint, and

ballistic evidence tying Defendant to this crime, it cannot

reasonably be argued that these brief comments could have affected

the jury’s verdict. King v. State , 623 So. 2d 486, 488 (Fla.

1993)(conviction will not be overturned unless prosecutor’s comment

- 30 -

is so prejudicial that it vitiates the entire trial; any error is

harmless if there is no reasonable possibility that the comments

affected the jury’s verdict); Watson v. State , 651 So. 2d 1159,

1163 (Fla.1994)(no error in denying mistrial after prosecutor made

repeated references to the effect of finding the victim’s body on

her widower, in view of substantial evidence); Dailey v. State ,

594 So. 2d 254, 256 (Fla. 1991)(improper reference to defendant’s

resisting extradition, where comment was extremely brief, was

harmless); Williams v. State , 492 So. 2d 1501, 1503 (Fla.

1986)(comment in opening that defendant was caught in a high-crime

area not comprise such substantial prejudice as to vitiate the

entire trial). Defendant’s convictions should be affirmed.

- 31 -

II.

THE TRIAL COURT PROPERLY DENIED DEFENDANT’SMOTION, AFTER 75 DAYS OF PREPARATION TIME HADALREADY BEEN ALLOWED, FOR AN ADDITIONALCONTINUANCE.

Defendant’s second claim is that the trial court erred in

failing to further continue the penalty phase after allowing

Defendant’s counsel 75 days in which to prepare. Defendant has

failed to show that the trial court abused its discretion.

At the status hearing held on September 19, 1994, four days

before the sentencing phase before the jury was to commence,

defense counsel moved for a continuance for thirty days in which to

conduct further investigation. (T. 2103). The trial court

observed that when counsel was appointed, the court specifically

advised him of the date of the sentencing hearing, and informed him

that he should not accept appointment if he could not be ready

within the 75 days available. (T. 2107). The court further noted

that there would be no time available between September and the end

of the year in which to conduct the hearing. The court further

explained that it was not “in a rush to judgment,” but was

concerned the jury might be contaminated. (2111). The judge

observed that the jury had already been at large for three months

since the verdict. Moreover, although there had been little

publicity, the court was very concerned that when the “B” jury came

8 Notably, thirty days was the time period requested in themotion for continuance. (R. 479).

- 32 -

out with its sentencing recommendations it would be very difficult

to ensure that the “A” jury remained unaware of its decision. (T.

2108-09). The court thus denied the continuance.

The court did, however, specifically reaffirm that its primary

concern was the jury, and that it would be more than amenable to

delaying the presentation before the court if counsel needed

further time for investigation. (T. 2111). In that regard,

defense counsel requested, and was granted an additional $1000 in

investigative costs. Id. Tellingly, counsel never thereafter

moved to continue the presentation to the court; nor did counsel

present any further witnesses or evidence at that hearing, despite

being given the opportunity to do so. It can only be concluded

that no more mitigation evidence, witnesses, or leads were

uncovered in the intervening month. 8

Thus, it cannot be said that Defendant was prejudiced by the

trial court’s refusal to grant the continuance. Further, counsel

made a substantial presentation before the jury. Defendant had the

benefit of expert testimony. Dr. Gary Schwartz testified that he

had reviewed Defendant’s records from the Dade County and Georgia

school systems, from three hospitals in Miami, which had been

9 In his affidavit presented with the motion forcontinuance, Defendant’s investigator stated that he had conductedinvestigations in Detroit and Georgia as well as in Florida. Hefurther obtained all of Defendant’s medical and other records andinterviewed numerous potential witnesses. (R. 487).

- 33 -

supplied to him by defense counsel. He met with Defendant’s family

and conducted standardized testing over the course of three

separate interviews. (T. 2249-51). Defendant’s parents and sister

also testified extensively regarding Defendant’s upbringing and

family life. Finally, Defendant failed, after being given

additional time and money to investigate, to identify any witness

he would have called or any evidence he would have presented had he

had more time to prepare. 9

The general rule is that the granting or denying of a motion

to continue the penalty phase is within the discretion of the trial

court. Valdes v. State , 626 So. 2d 1316, 1323 (Fla. 1993); Wike

v. State , 596 So. 2d 1020, 1025 (Fla. 1992). Ordinarily the

reviewing court is reluctant to invade the purview of the trial

court. Wike . Defendant relies on Wike in support of his claim.

However Valdes is more apposite here. In Wike the court noted that

the abuse lay in failing to grant a few days continuance to secure

the presence of specifically identified witnesses, who would be

available at a specific time, but were not available at the

scheduled time of the hearing, and who had identifiable evidence to

impart. Moreover the penalty phase hearing had been set to

- 34 -

commence the morning following the rendition of the guilty

verdicts. In Valdes , although certain witnesses were identified,

the court noted that counsel had had ten months to prepare before

the trial and “a full week” to prepare between the guilt- and

penalty-phase proceedings. As such the continuance was properly

denied.

Here, as in Valdes , defense counsel had ample time to prepare.

Although Mr. Kassier was not appointed until July of 1994, he was

not, as could be inferred from Defendant’s brief, (B. 16),

appointed to replace trial counsel, but to supplement him. Mr.

Guralnick had been representing Defendant since February 20, 1992,

for more than two and one half years before the penalty phase. The

record reflects that Mr. Guralnick continued to represent Defendant

and was present throughout the post-verdict proceedings. Moreover,

the defense was given more than three months in which to prepare

after the appointment of Mr. Kassier. Finally, as noted, ample

evidence was presented, the defense was given more money, as well

as the offer of additional time, if needed, to secure mitigating

evidence to present to the trial court. No additional evidence was

presented and no additional time was requested. Plainly the trial

court was correct in concluding that the defense was merely on a

fishing expedition. It is equally plain that the fish did not

bite. In view of the foregoing it cannot be said that the trial

- 35 -

court abused its discretion. Valdes . Defendant’s sentence should

be affirmed.

- 36 -

III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH.

Defendant avers that the trial court erred in either rejecting

proffered mitigation or in failing to give the mitigation it found

sufficient weight. He further asserts that the penalty is

disproportionate to the crime. A review of the proceedings,

however, shows that the trial court properly rejected certain

proposed mitigation and adequately weighed the remainder. The

trial court ultimately concluded that the mitigation proven was

outweighed by the aggravation, and that Defendant was sufficiently

culpable, and followed the jury’s recommendation that Defendant be

sentenced to death. The court’s conclusions were proper.

A trial court is obligated to find, as mitigating

circumstances, only those proposed factors which are mitigating in

nature and have been reasonably established by the greater weight

of the evidence. Campbell v. State , 571 So. 2d 415, 419 (Fla.

1990). Furthermore:

[W]hen a reasonable quantum of competent,uncontroverted evidence of a mitigatingcircumstance is presented, the trial courtmust find that the mitigating circumstance hasbeen proved. A trial court may reject adefendant’s claim that a mitigatingcircumstance has been proved, however,provided that the record contains “competentsubstantial evidence to support the trialcourt’s rejection of these mitigatingcircumstances.”

- 37 -

Nibert v. State , 574 So. 2d 1059, 1062 (Fla. 1992). See also ,

Walls v. State , 641 So. 2d 381, 390-91 (Fla. 1994)(“certain kinds

of opinion testimony ... are not necessarily binding even if

uncontroverted. Opinion testimony gains its greatest force to the

degree it is supported by the facts at hand, and its weight

diminishes to the degree such support is lacking. A debatable link

between fact and opinion relevant to a mitigating factor usually

means, at most, that a question exists for judge and jury to

resolve”). Finally, once it has been established, the weight to be

ascribed to a particular mitigating factor is a matter for the jury

and judge to determine. Jones v. State , 648 So. 2d 669, 680 (Fla.

1994); Slawson v. State , 619 So. 2d 255, 260 (Fla. 1993). With

the foregoing principles in mind, the State will address

Defendant’s contentions.

1. Defendant’s Age

Defendant first asserts that the trial court erred in failing

to find that Defendant’s age of 19 at the time of the crime was

mitigating. However, the finding of age as a mitigating factor is

a decision that rests within the discretion of the trial court, and

numerous decisions have upheld the refusal to treat ages of 18 or

more as mitigating. See e.g. , Merck v. State , 664 So. 2d 939, 942

(Fla. 1995)(“the trial court may find or decline to find age as a

mitigating factor in respect to a defendant who is 19. In the

10 Defendant’s reliance on Amazon v. State , 487 So. 2d 8(Fla. 1986), is misplaced. That case involved the analysis of thetrial court’s override of the jury’s life recommendation. Thatunder the circumstances of that case the jury could have consideredthe defendant’s age as mitigating does not necessarily mean thatunder the circumstances here the judge had to find Defendant’s ageto be mitigating.

- 38 -

trial court’s sentencing order in this case, the trial court

considered but rejected defendant’s age as being a mitigating

factor. We affirm.”); Cooper v. State , 492 So. 2d 1059, 1063

(Fla. 1986) (trial judge acted within discretion in rejecting age

of 18 as mitigating factor); Garcia v. State , 492 So. 2d 360 (Fla.

1986) (“The fact that a murderer is twenty years of age, without

more, is not significant, and the trial court did not err in not

finding it as mitigating”); Kokal v. State , 492 So. 2d 1317, 1319

(Fla. 1986) (no abuse of discretion in not finding age of 20 as

mitigating);

Defendant avers that his expert’s testimony supports the

finding of the age mitigator. 10 (B. 20). However, Dr. Schwartz

never offered any testimony as to Defendant’s “emotional age.”

Schwartz found only that Defendant had relatively low intelligence

and suffered from an unspecified personality disorder. The doctor

did not feel that Defendant suffered from any major mental illness

or organicity. On the other hand, the doctor did note that

11 The doctor did note that Defendant had poor judgment, butthose with good judgment seldom get themselves convicted of firstdegree murder. In any event, that conclusion was in no way tiedinto Defendant’s age, emotional or otherwise.

- 39 -

Defendant had antisocial tendencies. 11 The lay testimony revealed

that Defendant had left home and school at the age of 16 (three

years before the crime) in order to get married and work. Since

that time he had gotten divorced and subsequently, and up until his

arrest, cohabitated with another woman and acted as a “father

figure” to her children. There simply was no record evidence that

Defendant was particularly immature, such that his age could be

considered of such significance as to compel the trial court to

have found it as a mitigator.

2. Duress

Defendant next faults the trial court for rejecting his claim

that he acted under extreme duress at the time of the crime. This

claim was predicated on Defendant’s trial testimony and his

exculpatory statement given at the time of his arrest, to the

effect that he did not realize they were going to rob the bank

until the morning of the crime, and that he participated in the

crime only because codefendant Franqui had threatened his life and

the lives of his family. However, this evidence was directly

contradicted by the testimony of Cromer, who testified that it was

Defendant who made the connection between the plan to rob the bank

- 40 -

and the other defendants. It was further contradicted by the

testimony of Sanchez, to whom Defendant bragged about stealing the

robbery plan from Cromer, stealing the cars for the heist, buying

the guns, and buying his girlfriend a new bedroom set with the

proceeds. Also generally contradictory of the claim of duress and

surprise was Defendant’s self-confessed earlier role as the

“finder” of the Hialeah “job,” which he referred to Franqui and San

Martin, in hopes of sharing the proceeds.

The trial court rejected Defendant’s testimony and

“confession” as unworthy of belief, finding him “insincere,” and

concluded that the evidence did not support a finding that

Defendant acted under duress. (R. 546-48). No error occurred.

Sireci v. State , 587 So. 2d 450, 453 (Fla. 1991)(“The decision as

to whether a particular mitigating circumstance is established lies

with the judge. Reversal is not warranted simply because an

appellant draws a different conclusion. ... Further, it is the

trial court’s duty to resolve conflicts in the evidence, and that

determination should be final if supported by competent,

substantial evidence;” no error in rejecting duress); Maqueira v.

State , 588 So. 2d 221, 224 (Fla. 1991)(no error in rejecting

statutory mitigator of extreme duress despite defendant’s self-

serving “confession” that his codefendant held a gun to his head

before commission of the crime).

12 Defendant cites Fitzpatrick v. State , 437 So. 2d 1072(Fla. 1983)(prior attempted armed robbery and bombing of school);Quince v. State , 414 So. 2d 185 (Fla. 1982)(prior armed robbery andburglary); and Booker v. State , 397 So. 2d 910 (Fla. 1981)(priorviolent juvenile, military, and adult convictions).

- 41 -

3. No Significant Criminal History

Defendant asserts that the trial court should have found the

statutory mitigating circumstance of no significant prior criminal

history. As he did in the trial court, Defendant makes the flawed

argument that because there exist cases in which this court has

upheld the rejection of this mitigator where the defendant had

committed extremely serious crimes in the past, the trial court may

not reject the mitigator where the defendant had a history of

purportedly less serious criminal activity. 12 The trial court

properly rejected this argument, however, citing Defendant’s

history of juvenile “joy riding,” cocaine trafficking in excess of

400 grams, which, as the trial court noted, is a first-degree

felony, and cocaine use. (R. 545). No error occurred. Slawson v.

State , 619 So. 2d 255, 260 (Fla. 1993)(“it is clear that the

mitigating factor of no significant criminal activity may be

rebutted by record evidence of criminal activity, including drug

activity”); Walton v. State , 547 So.2d 622, 625 (Fla. 1989)(same);

Washington v. State , 362 So.2d 658, 666 (Fla.1978)(same).

4. Nonstatutory Mitigation

Defendant also raises numerous claims as to the trial court’s

- 42 -

treatment of his proposed nonstatutory mitigation. The trial court

rejected his contentions that his psychological and educational

history, his alleged remorse, the potential of imprisonment for the

rest of his life, his potential for rehabilitation, and the life

sentence of his codefendant Abreu established mitigating

circumstances. The court found, but gave little weight to the

mitigating factors of Defendant’s family history and his

cooperation with the authorities. The trial court acted well

within its discretion.

(a) Family History

Defendant faults the trial court for failing to “adequately

consider” this mitigating circumstance. (B. 24). However, the

trial court gave full consideration to Defendant’s family history,

finding it to be mitigating. (R. 549). The court cogently noted

however, that although his parents may have misguidedly condoned

his drug use, they never advocated violent robbery. Id. Further,

contrary to Defendant’s characterization of the evidence, he was

not without moral guidance in his youth. There was no evidence

that Defendant was ever aware of his parents’ own drug use. The

evidence regarding his parents’ sale of drugs did not indicate that

they were “professionals.” Rather the testimony was essentially

that the father, during a period of financial difficulty, agreed to

13 The State does not condone Defendant’s parents’ behavior.However, they were not, as his argument might suggest, major mobfigures.

- 43 -

act as a “mule” on one occasion, and got caught. 13 The parents only

allowed Defendant to use drugs in the home in fear that if they did

not he would use them on the streets. Moreover, his mother

testified that although she felt she should have been stricter, she

was not, because, from the age of nine, Defendant threatened to

turn her in to HRS if she disciplined him, and she was afraid of

losing him. Defendant was never physically or mentally abused, and

was raised by working parents who were still married. Finally,

Defendant’s great-grandmother was a positive and loving influence

on him while he was growing up.

In view of the foregoing the trial court acted wholly within

its discretion in giving these factors little weight. Johnson v.

State , 660 So. 2d 637, 647 (Fla. 1995)(“Once the [aggravating and

mitigating] factors are established, assigning their weight

relative to one another is a question entirely within the

discretion of the finder of fact”). See also Lara v. State , 464

So. 2d 1173, 1180 (Fla. 1985)(“the trial court could properly

conclude the appellant’s actions in committing this murder were not

significantly influenced by his childhood experience so as to

justify its use as a mitigating circumstance”); Kight v. State ,

512 So. 2d 922, 933 (Fla.1987)(same); Valle v. State , 581 So. 2d

- 44 -

40, 48-49 (Fla. 1991)(trial court properly weighed and rejected

evidence of dysfunctional family and abusive childhood as

mitigating factors).

(b) Psychological/Educational History

The trial court found that Defendant’s “psychological and

educational history” did not mitigate Defendant’s conduct in light

of the circumstances of the case. (R. 549-50). The court was

“unimpressed” by Defendant’s expert’s testimony. Id. Although

Defendant had relatively low intelligence and was unable to write

(he could read, but not well), Dr. Schwartz’s examination failed to

reveal any major mental illness or organicity. On the contrary the

testing showed that Defendant merely had antisocial tendencies.

Moreover, at no point were any of Defendant’s alleged difficulties

ever in any way related to Defendant’s conduct on January 3, 1992;

there was absolutely no evidence whatsoever of disturbance at the

time of the crime, that Defendant was unable to distinguish right

from wrong, or that he was unable to conform his conduct to the

requirements of the law.

As for Defendant’s educational history, the record showed that

although he suffered from a learning disability, Defendant spurned

efforts to assist him, skipping school on a regular basis, at one

point for forty days in a row, even after he had been placed in

- 45 -

special class to help him learn.

In view of the foregoing, the trial court properly concluded

that Defendant’s history did not establish a mitigating

circumstance. Rogers v. State , 511 So. 2d 526, 535 (Fla. 1987),

rev’d on other grounds , 630 So. 2d 513 (Fla. 1993)(facts regarding

defendant’s intelligence standing alone not mitigating unless

related to his moral culpability); Mills v. State , 462 So. 2d

1075, 1083 (Fla. 1985)(“the trial court did not err in failing to

find any nonstatutory mitigating circumstances in the testimony of

Dr. Akbar concerning Mills’ low intelligence ... The trial court

need not consider low intelligence alone as a mitigating

circumstance”); Carter v. State , 576 So. 2d 1291, 1292-93 (Fla.

1989)(trial court properly rejected alleged mental mitigation where

expert testimony concluded there could be mental deficiency, but

also that defendant could be sociopathic); Taylor v. State , 630

So. 2d 1038, 1043 (Fla. 1993)(trial court properly gave limited

evidence of mental retardation “slight” weight where there was also

evidence that the defendant was a “functioning adult living away

from the parental home”).

(c) Remorse

Defendant avers that the trial court erred in failing to

credit the “substantial amount of evidence of remorse.” (B. 25).

14 Defendant conveniently copied the letter before mailingit. The better to preserve it for admissibility as evidence? Inany event, the letter shows less concern for what Defendant didthan for where his actions got him:

Don’t forget that their [sic] are no freinds[sic] in this world. Look where my so calledfreind [sic] got me ... I’ll be out soon.

(R. 486).

- 46 -

There was indeed much testimony as to Defendant’s crying, lack of

sleep, and nightmares. Defendant also claimed to be remorseful and

presented a letter written to a former teacher counseling other

children not to do as he had done. However, all this evidence was

just as consistent with fear as remorse, as the trial court

concluded. (R. 550).

Indeed, the evidence was more consistent with fear.

Defendant’s nightmares were not about the bloody horror of Steven

Bauer’s death; they were about the electric chair. Likewise, his

expressions of remorse such as the letter, 14 reflect less sorrow at

the death and suffering his actions caused, than self-pity for his

present predicament. Furthermore his purported remorse is wholly

inconsistent with his repeated denials of responsibility. Even at

the sentencing hearing before the court, Defendant maintained that

he was not responsible for the crime, and was only present because

Franqui forced him. Finally, after sentence was pronounced, as if

to punctuate the wisdom of the court’s conclusions, Defendant

- 47 -

demonstrated just how remorseful he was:

DEFENDANT FERNANDEZ: It’ll be back onappeal, don’t worry about it. I am notworried. It was a waste of time.

(Fr. T. 3215). No error occurred. Nibert .

(d) Cooperation with the Authorities

Defendant next argues that the trial court should have found

that his cooperation with the authorities “should have been

considered in mitigation.” (B. 25). The trial court did consider

this factor, but “in the light of all the facts” gave it little

weight. (R. 551). Those facts include Defendant’s seeking of

spiritual help, not to ease his conscience, or to seek forgiveness,

or to do penance, but to obtain protection from justice.

Furthermore Defendant’s “cooperation” consisted of giving a

“confession” which, as the trial court found, (R. 546-47), was a

disingenuous attempt to foist all the blame off on his

codefendants. Finally, Defendant’s “cooperation” did not begin

until after he had been turned in by Prado and Hernandez. As

noted above, the weight to be given established mitigating factors

is wholly within the discretion of the trier of fact. The trial

court was well within its discretion in giving Defendant’s

cooperation little weight. See Washington v. State , 362 So. 2d

658 (Fla. 1978)(cooperation properly rejected as mitigation where

defendant not begin to cooperate until after he had been identified

- 48 -

as a participant in the crime).

(e) Potential for Rehabilitation

Defendant also claims that the trial court should have

considered his potential for rehabilitation as mitigating. He cites

his letter to the former teacher as evidence of this potential.

(B. 26). However, as with his claim of remorse, the trial court

rejected the letter as evidence of potential for rehabilitation,

finding that the evidence was just as consistent with the

manufacturing of mitigation. (R. 550). The court further noted

that both remorse and rehabilitation would be reflected in an

acceptance of responsibility, which, as noted supra , Defendant has

failed to do. Moreover, the evidence counsels against Defendant’s

potential for rehabilitation. As early as age nine, Defendant has

been manipulating people to avoid the consequences of his actions,

beginning with threats to turn his mother into HRS in order to

avoid discipline. In the instant case, Defendant has maintained,

from the time he was arrested until the post-recommendation hearing

before the court, in the face of overwhelming evidence to the

contrary, that he was essentially not at fault. Defendant’s

refusal to accept responsibility for his acts hardly bespeaks a

contrite and redeemable soul. Finally, Defendant’s repeated

criminal activity since he was a young teenager refutes any claim

to potential for rehabilitation. Mills v. State , 462 So. 2d 1075,

- 49 -

1082 (Fla. 1985). The trial court did not err in refusing to find

this factor in mitigation.

(f) Alternative Sentence

Defendant argues that the trial court should have found that

Defendant’s parole-ineligibility (because the murder victim was a

police officer) was a mitigating circumstance. Defendant relies on

Jones v. State , 569 So. 2d 1234 (Fla. 1990). Defendant’s reliance

is misplaced.

Jones has no bearing on the issue before the court. That case

merely held that counsel was permitted to argue to the jury the

fact that the defendant would be removed from society for a minimum

of 50 years if sentenced to life for the two murders he committed.

Id. at 1239-40. That is not the issue presented, however. The

issue here is whether the fact that Defendant would not be eligible

for parole establishes a mitigating circumstance that the trial

court should have found.

Parole-ineligibility is not a mitigating circumstance; rather

it is an integral part of the weighing process the trial court

undertakes. Mitigating circumstances are any aspect of the

defendant’s character and record or circumstances of the offense

that lessen the defendant’s culpability and offer a basis for a

- 50 -

sentence less than death. Rogers , 511 So. 2d at 535; Campbell ,

571 So. 2d at 419; Nixon v. State , 572 So. 2d 1336 (Fla. 1990).

While trial courts consider the sentencing alternatives before

them, such consideration is intrinsic to their weighing process;

whenever a trial court imposes the death penalty, it has

necessarily rejected, as insufficient, the alternative penalty,

whatever its nature.

Although the trial court below nominally addressed the issue

in the format Defendant presented, i.e. , as a mitigating

circumstance, the court’s analysis highlights parolability’s true

role as an integral part of the overall weighing process:

The defendant suggests that life imprisonmentwithout possibility of parole is enough. Thiscourt does not belittle the severity of a lifesentence without possibility of parole[.][H]owever the law requires a cold anddispassionate analysis of the aggravating andmitigating circumstances and a fair andintellectually honest assessment of what theappropriate sentence should be. Given thefacts of the instant case the court does notfeel that the alternative sentence to thedeath penalty serves as a mitigatingcircumstance. The court is therefore NOTreasonably convinced that the existence of analternative sentence to death warrants thefinding of a non-statutory circumstance.

(R. 552)(emphasis added). The court clearly concluded that in the

light of the facts of the case and the other factors in aggravation

and mitigation, Defendant’s parole eligibility did not alter the

balance in favor of life.

- 51 -

Furthermore, even assuming that the alternative sentence could

be a mitigating factor under some circumstances does not compel the

conclusion that the absence of the availability of parole is proper

mitigation in this case. At the time of Defendant’s crime, first

degree murder was punishable by death or life without parole for 25

years. As an additional sanction, the legislature mandated no

parole for those sentenced to life imprisonment if the victim were

a police officer. By Defendant’s logic, the trial court should

have considered as mitigation the fact that the legislature

considered his crime as one requiring greater punishment . The

absurdity is apparent.

Finally, even if, arguendo , the trial court should have found

Defendant’s parole-ineligibility as a mitigating circumstance, any

error would be harmless beyond a reasonable doubt. As noted above,

the trial court clearly considered the fact that Defendant would

never be released, and was unpersuaded that this formed a basis for

not sentencing Defendant to death. Under such circumstances, this

court has repeatedly concluded that the trial court’s consideration

of the proffered mitigation was adequate. See Barwick v. State ,

660 So. 2d 685, 696 (Fla. 1995); Lowe v. State , 650 So. 2d 969,

977 (Fla. 1994); Thompson v. State , 648 So. 2d 692, 697 (Fla.

1994); Jones v. State , 648 So. 2d 669, 679 (Fla. 1994); Green v.

State , 641 So. 2d 391, 396 (Fla. 1994); Pettit v. State , 591

- 52 -

So. 2d 618, 620 (Fla. 1992); Krawczuk v. State , 634 So. 2d 1070,

1073 (Fla. 1994).

(g) Abreu’s Life Sentence

Defendant’s claim regarding the sentence of codefendant Abreu

is also without merit. The trial court found in its sentencing

order that although neither Defendant nor Abreu actually shot

Officer Bauer, Abreu’s role was substantially less than

Defendant’s. (R. 551). While Defendant was actually at the scene

of the robbery and murder, Abreu was parked several blocks away in

the getaway vehicle. Further, Defendant was the person who brought

together the “job” and his codefendants, who obtained the murder

weapons, and who stole the Caprices. Finally, Abreu pled guilty

and agreed to be a witness for the State in both this and the

Hialeah cases, in exchange for the life sentences he received in

both cases. The decision to prosecute or not, or to grant immunity

is wholly within the discretion of the State Attorney. Her

decisions in such matters are questions of executive prerogative

not subject to judicial scrutiny. State v. Bloom , 497 So. 2d 2, 3

(Fla. 1986). Further, prosecutorial discretion in plea bargaining

with accomplices is not unconstitutionally impermissible and does

not violate the principle of proportionality. Garcia v. State , 492

So.2d 360, 368 (Fla. 1986).

- 53 -

Under the circumstances like the foregoing, this court has

repeatedly approved the imposition of the death penalty where a

codefendant received life. Cardona v. State , 641 So. 2d 361, 365

(Fla. 1994)(challenge to proportionality of death sentence in face

of codefendant’s life sentence rejected where defendant more

culpable); Steinhorst v. Singletary , 638 So. 2d 33, 35 (Fla.

1994)(same); Hannon v. State , 638 So. 2d 39, 44 (Fla. 1994)(same);

Colina v. State , 634 So. 2d 1077, 1082 (Fla. 1994)(same); Coleman

v. State , 610 So. 2d 283, 1287 (Fla. 1992)(same); Robinson v.

State , 610 So. 2d 1288, 1292 (Fla. 1992)(same); Downs v. State ,

572 So. 2d 895, 901 (Fla. 1990)(same); Williamson v. State , 511

So. 2d 289, 293 (Fla. 1987)(same); Troedel v. State , 462 So. 2d

392, 397 (Fla. 1984)(same); Tafero v. State , 403 So. 2d 355, 362

(Fla. 1981)(same); Jackson v. State , 366 So. 2d 752, 757 (Fla.

1978)(same). It follows that the trial court was well within its

discretion in rejecting Abreu’s sentence as a factor in mitigation.

5. Harmless Error

Finally, even assuming, arguendo , that any of Defendant’s

claims regarding the factors in mitigation had merit, any error

would be harmless beyond a reasonable doubt. The trial court found

three strong aggravating factors: (1) prior convictions for

felonies involving violence; (2) murder committed during the course

of a robbery, merged with the motive of pecuniary gain, to which it

- 54 -

gave great weight; and (3) murder of a law enforcement officer,

merged with witness elimination. (R. 542-44). Defendant has not

challenged these findings. The court also found no statutory

mitigating circumstances, and minimal nonstatutory mitigation, to

which the court gave little weight: Defendant’s family history and

cooperation with the authorities. (R. 544-52). Finally, the court

concluded that the aggravation “far outweigh[ed]” the mitigation.

(R. 555). Wickham v. State , 593 So. 2d 191 (Fla. 1991)(in light of

very strong case of aggravation any error in weighing of mitigators

was harmless beyond a reasonable doubt).

6. Proportionality

As his final contention, Defendant claims that his sentence is

disproportionate. The term “proportionality,” as used in

death-penalty jurisprudence, refers to two distinct concepts.

Pulley v. Harris , 465 U.S. 37, 43 (1984). The first, as the

meaning is understood in traditional Eighth Amendment analysis, is

concerned with whether the punishment is commensurate with the

crime. Id. ; Enmund v. Florida , 458 U.S. 782, 787 (1982). The

second type of “proportionality” addresses whether the sentence is

disproportionate to the punishment imposed on others convicted of

the same crime. Pulley , 465 U.S. at 43. Defendant claims that his

sentence is inappropriate in the former sense. The trial court, in

a lengthy analysis, reviewed the law regarding the application of

15 The issue of codefendant Abreu’s life sentence hasalready been addressed, supra , at Point III(4)(g).

- 55 -

the death penalty to “non-shooters” and correctly concluded that

Defendant’s sentence was appropriate. Although Defendant does not

assert that his sentence is disproportional when compared to the

sentences of other similarly-situated defendants, 15 because the

court addresses proportionality in this sense in every death

penalty case, the State will show that any such claim of

disproportionality would also be without merit.

(a) Proportionality as to Defendant’s Culpability

Pursuant to this court’s dictates, the trial court analyzed

whether death was the appropriate penalty in this case, given that

Defendant was not one of the triggermen. Upon consideration of all

the circumstances, the court concluded that it was:

In Edmund v. Florida , 102 S.Ct. 3368(1982) the United States Supreme Court heldthat a sentence of death violated the EighthAmendment of the United States Constitution“... in the absence of proof that thedefendant killed or attempted to kill.” InJackson v. State , 502 So. 2d 409 (Fla. 1986)the Supreme Court of Florida held that

In order to ensure a defendant’sright to an Enmund factual findingand to facilitate appellate reviewof this issue, we direct the trialcourts of this state in appropriatecases to utilize the followingprocedure. The jury must beinstructed before its penalty phasedeliberations that in order to

- 56 -

recommend a sentence of death thejury must first find that thedefendant killed or attempted tokill or intended that a killing takeplace or that lethal force beemployed... trial court judges aredirected when sentencing such adefendant to death to make anexplicit written finding that thedefendant killed