FRANQUI v. STATE

PER CURIAM.

We have on appeal an order of the trial court imposing the death penalty upon Leonardo Franqui following resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm Franqui's death sentence.

On February 14, 1992, Franqui was charged with committing first-degree murder of a law enforcement officer; armed robbery; aggravated assault; two counts of grand theft; and two counts of burglary in connection with a bank robbery. Franqui was tried jointly with codefendants Ricardo Gonzalez and Pablo San Martin. This Court previously summarized the facts in this case as follows:

The defendant, Leonardo Franqui, along with codefendants Pablo San Martin, Ricardo Gonzalez, Fernando Fernandez, and Pablo Abreu were charged with first-degree murder of a law enforcement officer, armed robbery with a firearm, aggravated assault, unlawful possession of a firearm while engaged in a criminal offense, grand theft third degree, and burglary [Note 1]. Franqui, Gonzalez, and San Martin were tried together before a jury in May, 1994.

[Note 1] One count of aggravated assault and the unlawful possession of a firearm while engaged in a criminal offense were nol prossed by the State after its opening statement.

The record reflects that the Kislak National Bank in North Miami, Florida, was robbed by four gunmen on January 3, 1992. The perpetrators made their getaway in two stolen grey Chevrolet Caprice cars after taking a cash box from one of the drive-in tellers. During the robbery, Police Officer Steven Bauer was shot and killed. Shortly after the robbery, the vehicles were found abandoned two blocks west of the bank.

Approximately two weeks later, codefendant Gonzalez was stopped by police after leaving his residence on January 18, 1992. He subsequently made unrecorded and recorded confessions in which he told police that Franqui had planned the robbery, involved the other participants and himself in the scheme, and chosen the location and date for the crime. He said that Franqui had procured the two stolen Chevys, driven one of the cars, and supplied him with the gun he used during the robbery. He further stated that Franqui was the first shooter and shot at the victim three or four times, while he had shot only once. Gonzalez indicated that he shot low and believed he had only wounded the victim in the leg. Gonzalez consented to a search of his apartment which revealed $1200 of the stolen money in his bedroom closet. He was subsequently reinterviewed by police and, among other things, described how Franqui had shouted at the victim not to move before shooting him [Note 2].

[Note 2] San Martin also made a confession to police, in which he stated that the robbery was planned by a black friend of the codefendant Fernandez and that the planning occurred at Fernandez's apartment. San Martin admitted that he had grabbed the money tray during the robbery but could not say who carried guns or did the shooting.

Franqui was also questioned by police on January 18, 1992, in a series of unrecorded and recorded sessions. During his preinterview, Franqui initially denied any involvement in the Kislak Bank robbery, but when confronted with the fact that his accomplices were in custody and had implicated him, he ultimately confessed. Franqui stated that Fernandez had hatched the idea for the robbery after talking to a black male, and he had accompanied the two men to the bank a week before the robbery actually took place. He maintained that the black male friend of Fernandez had suggested the use of the two stolen cars but denied any involvement in the thefts of the vehicles. According to Franqui, San Martin, Fernandez and Abreu had stolen the vehicles. Franqui did admit to police that he and Gonzalez were armed during the episode, but stated that it was Gonzalez-and not himself-who yelled at the victim to "freeze" when they saw him pulling out his gun. Franqui denied firing the first shot and maintained that he fired only one shot later.

At trial, over the objection of Franqui, the confessions of codefendants San Martin and Gonzalez were introduced without deletion of their references to Franqui, upon the trial court's finding that their confessions "interlocked" with Franqui's own confession. In addition, an eyewitness identified Franqui as the driver of one of the Chevrolets leaving the bank after the robbery, and his fingerprints were found on the outside of one of the vehicles. Ballistics evidence demonstrated that codefendant Ricardo Gonzalez had fired the fatal shot from his .38 revolver, hitting the victim in the neck, and that Franqui had shot the victim in the leg with his .9 mm handgun.

On appeal, we affirmed Franqui's convictions but vacated his sentence on the basis that the trial court erred in admitting the confession of codefendant Gonzalez against Franqui in their joint trial. See id. at 1335-36. Although we found the admission of Gonzalez's confession was harmless beyond a reasonable doubt with respect to guilt, we concluded that the confession could have prejudiced Franqui during the penalty phase. See id. at 1336. Accordingly, we vacated Franqui's death sentence and remanded the case for a new penalty phase proceeding. See id.

During the week of August 24-31, 1998, a jury was empaneled and a new penalty phase was held. At the resentencing, the State presented several witnesses, including the two bank tellers who were with Officer Bauer the morning of his murder; law enforcement officers who arrived at the scene following the shooting to gather evidence and render emergency assistance to the victim; detectives who questioned and obtained a sworn statement from Franqui describing his role in the robbery leading to Officer Bauer's death; and a medical examiner regarding the cause of death and injuries.

Franqui presented the testimony of several witnesses to substantiate his claims for mitigation. Specifically, Franqui's uncle testified with respect to his family history and background. Franqui's cousin testified regarding his self-improvement and faith since being incarcerated. In addition, Franqui's father-in-law and sister-in-law testified that he was a good husband as well as a loving and caring father to his two children.

The jury recommended the death penalty by a vote of ten to two. The trial court followed the jury's recommendation and sentenced Franqui to death. In so doing, the trial court found three aggravating circumstances, no statutory mitigating circumstances, and four nonstatutory mitigating circumstances. The trial court concluded that the aggravating circumstances outweighed the mitigating circumstances and sentenced Franqui to death.

This appeal follows, in which Franqui raises the following six issues: (1) the trial court erred in excusing two potential jurors for cause; (2) the trial court erred in instructing and permitting the jury to be instructed by the State that it was required to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances; (3) the trial court erred in overruling defense objections to prosecutorial closing argument; (4) the trial court erred in refusing to instruct the jury that it could consider the life sentences given to codefendants San Martin and Abreu as a mitigating factor; (5) the trial court failed to find and weigh all mitigating circumstances; and (6) the death penalty is disproportionate in this case.

First, Franqui asserts that the trial court improperly excused jurors Pereira and Lopez for cause over defense counsel's objections. Franqui claims that both jurors indicated their ability to follow the law and the court's instructions and, therefore, should not have been excused. The test for determining juror competency is "whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court." Kearse v. State, 770 So.2d 1119, 1128 (Fla. 2000) (citing Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984)). Under this test, a trial court should excuse a juror for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See id.; see also Singer v. State, 109 So.2d 7, 23-24 (Fla. 1959) ("[I]f there is basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused for cause on motion of a party, or by the court on its own motion."). The trial court has the duty to decide if a challenge for cause is proper, and its ruling will be sustained on appeal absent an abuse of discretion. See Castro v. State, 644 So.2d 987, 989-90 (Fla. 1994); see also Singleton v. State, 783 So.2d 970, 973 (Fla. 2001).

During voir dire, juror Pereira initially expressed doubts about her support of the death penalty but thought it was necessary given the current state of affairs. When asked by the court if she could recommend death if the aggravating circumstances outweighed the mitigating circumstances, Pereira responded, "I think yes." Upon further questioning by the court, Pereira clarified her previous response by stating that she would recommend death if she really believed that it was necessary. Pereira, however, subsequently indicated that she agreed with another veniremember who responded that she would never impose the death sentence. Based upon her vacillation throughout voir dire, we find that the trial court did not abuse its discretion in excusing her for cause. See Hannon v. State, 638 So.2d 39, 41-42 (Fla. 1994); Randolph v. State, 562 So.2d 331, 336-37 (Fla. 1990).

Similarly, we find that the trial court did not abuse its discretion in excusing juror Lopez for cause. Although Lopez initially told the court that she was in favor of the death penalty, she later stated that she could not cast the deciding vote recommending a death sentence. Following an overnight recess, Lopez indicated that she was under a lot of stress because of the trial and the possibility of having to decide about the death penalty. Subsequently, she stated for the second time that she could not cast the deciding vote recommending a death sentence. Upon questioning by defense counsel, however, Lopez indicated that she would be able to recommend the death penalty if voting was done by secret ballot. Given the equivocal responses Lopez provided as to whether she could recommend the death penalty, we find the trial court did not abuse its discretion in excusing her for cause.

Next, Franqui argues that the trial court erred in instructing and permitting the jury to be instructed by the State during voir dire that it was required to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances. During its opening remarks to the initial venire, the trial court stated, "If you believe that the aggravating factors outweigh the mitigating factors, then the lawrequires that you recommend a sentence of death." (Emphasis added.) The State argues that this issue was not preserved for appeal because trial counsel did not raise a contemporaneous objection. We disagree. Although defense counsel did not object until a short time after the trial court's opening remarks were completed, we find the purpose of the contemporaneous objection rule was satisfied in this case, i.e., to place the trial judge on notice that an error may have occurred and provide him or her with the opportunity to correct the error at an early stage of the proceedings.

In Henyard v. State, 689 So.2d 239 (Fla. 1996), we considered whether a prosecutor's comments during voir dire that jurors must recommend death when aggravating circumstances outweigh mitigating circumstances misstated the law. See id. at 249-50. We held that the prosecutor's comments were misstatements of law because "a jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors." Id.; see also Brooks v. State, 762 So.2d 879, 902 (Fla. 2000) (stating that prosecutor misstated the law in commenting that jurors must recommend a death sentence unless the aggravating circumstances are outweighed by the mitigating circumstances); cf. Garron v. State, 528 So.2d 353, 359 n. 7 (Fla. 1988) (finding that it was a misstatement of the law to argue that "when the aggravating factors outnumber the mitigating factors, then death is an appropriate penalty"). For the same reasons expressed in Henyard, we agree with Franqui that the trial court's comment that the law required jurors to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances misstated the law.

As in Henyard, however, we conclude that Franqui was not prejudiced by this error. Despite Franqui's contrary assertions, we find that the trial court's subsequent comments to prospective jurors during voir dire were consistent with the standard jury instructions. More importantly, the trial court did not repeat the misstatement of law when instructing the jury prior to its deliberations. To the contrary, the final jury instructions given in this case were consistent with the standard jury instructions. In addition, the trial court gave defense counsel's requested instruction apprising the jury that the weighing process was not a mere counting of the aggravating and mitigating circumstances, but rather a reasoned judgment as to what the appropriate sentence should be in light of the nature of the aggravating and mitigating circumstances found to exist. This additional instruction was more in accord with Henyard and our seminal decision in State v. Dixon, 283 So.2d 1, 10 (Fla. 1973), cert. denied, 416 U.S. 943 (1974), wherein we stressed:

It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

Under these circumstances, we find the trial court's isolated misstatements of the law during voir dire to be harmless. See Henyard, 689 So.2d at 250. Further, we find that the trial court did not abuse its discretion in refusing to give the curative instruction requested by defense counsel during voir dire. See Foster v. State, 614 So.2d 455, 462 (Fla. 1992) (finding trial court did not abuse its discretion in refusing to give instruction on jury's pardon power); Mendyk v. State, 545 So.2d 846, 850 (Fla. 1989) (stating that there is no requirement that the jury be instructed on its pardon power); see also Dougan v. State, 595 So.2d 1, 4 (Fla. 1992).

Within this issue, Franqui also argues that the trial court erred in permitting the State to instruct the venire that "if mitigation never outweighs the aggravation in your mind, if aggravation is always more powerful, more weighted, than the mitigation, then you vote to recommend the death penalty." Defense counsel objected to this comment, and in response the trial court informed the jury concerning the law relating to the weighing of aggravating and mitigating circumstances. More importantly, as noted above, the final jury instructions given in this case were consistent with the standard jury instructions. Thus, even assuming that the objected-to comment misstated the law, we conclude any error resulting from this isolated comment made during an extensive jury selection process was harmless. See Henyard, 689 So.2d at 250.

Franqui also argues that the trial court erred in overruling defense counsel's objections to arguments made by the State during closing argument. In particular, Franqui alleges that the State improperly made comments outside the scope of the evidence by arguing that he used part of the proceeds from the Kislak Bank robbery to repaint his father-in-law's car so as to avoid arrest and to purchase a gun which was used in the subsequent robbery of Craig Van Ness. Franqui also asserts that the State improperly commented on the robbery of Van Ness, implying that he would have murdered Van Ness if he had not been arrested.

This Court has held that wide latitude is afforded counsel during argument. See Moore v. State, 701 So.2d 545, 550 (Fla. 1997); Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982). Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. See Thomas v. State, 748 So.2d 970, 984 (Fla. 1999). The standard jury instructions contain cautions that while the arguments of counsel are intended to be helpful and persuasive, such arguments are not to be taken as sources of the law or evidence. Further, the control of comments made to the jury is within the trial court's discretion, and an appellate court will not interfere unless an abuse of discretion is shown.See Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990).

As to the comment pertaining to Franqui's use of part of the proceeds from the bank robbery, we find no error. The record reflects that Franqui was unemployed at the time of the offense and had been so since December 1991. Nonetheless, the car used as the getaway vehicle upon abandoning the two stolen vehicles, which was owned by Franqui's father-in-law, was repainted shortly after the crime. The record also indicates that the guns used in the bank robbery were discarded following the crime. However, eleven days after the bank robbery, Franqui and two accomplices robbed and kidnapped Van Ness with a different gun. Based on these facts, we find the State's comment did not constitute an improper attempt to ask the jury to draw a logical inference based upon the evidence. See Mann v. State, 603 So.2d 1141, 1143 (Fla. 1992) (holding that merely arguing conclusions which can be drawn from the evidence is "permissible fair comment"). Thus, the trial court did not abuse its discretion in overruling defense counsel's objection to this comment.

On the other hand, we find the State's comment pertaining to the subsequent robbery of Van Ness was improper since it implied that Franqui and his accomplices would have murdered Van Ness had the police not stopped the van and arrested the occupants. Nonetheless, this isolated comment, by itself, does not warrant resentencing. This Court has held that prosecutorial misconduct in the penalty phase must be egregious to warrant vacating the sentence and remanding for a new penalty phase proceeding. See Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985). In light of the record in this case, this single erroneous comment within the State's lengthy closing argument was not so egregious as to taint the validity of the jury's recommendation and require reversal of the entire resentencing proceeding. See id.

Next, Franqui asserts that the trial court erred in refusing defense counsel's request that the jury be given a specific instruction that it could consider the life sentences of codefendants San Martin and Abreu as a mitigating circumstance. The trial court refused the requested instruction, concluding that this issue was covered by the standard jury instruction regarding nonstatutory mitigation. Contrary to the State's assertion, we find this issue was preserved for review. See Toole v. State, 479 So.2d 731, 733 (Fla. 1985) ("The contemporaneous objection rule is satisfied when, as here, the record shows that there was a request for an instruction, that the trial court understood the request, and that the trial court denied the specific request.");see also State v. Heathcoat, 442 So.2d 955, 955-56 (Fla. 1983). Nonetheless, we find this issue to be without merit. The trial court gave the standard jury instruction on nonstatutory mitigating circumstances, which explains in part that the jury may consider "any other circumstance of the offense" in mitigation. We have held that this standard jury instruction on nonstatutory mitigating circumstances is sufficient, and there is no need to give separate instructions on each item of nonstatutory mitigation. See Gore v. State, 706 So.2d 1328, 1334 (Fla. 1997); San Martin v. State, 705 So.2d 1337, 1349 (Fla. 1997);James v. State, 695 So.2d 1229, 1236 (Fla. 1997). Moreover, the trial court read to the jury a stipulation pertaining to the life sentences given to codefendants San Martin and Abreu prior to closing arguments, and the trial court specifically informed defense counsel that he could argue codefendants' life sentences as a mitigating circumstance to the jury, which counsel did during closing argument.

Franqui also argues that the trial court failed to find and weigh all of the nonstatutory mitigating evidence presented at resentencing. Specifically, Franqui contends that the trial court should have found and weighed in mitigation his family history and abandonment by his natural parents, his newfound maturity while incarcerated, and the fact that he did not fire the fatal bullet. This Court has stated that a trial court in its written order must evaluate each mitigating circumstance offered by the defendant and decide if it has been established and, in the case of nonstatutory factors, if it is of a truly mitigating nature. See Campbell v. State, 571 So.2d 415, 419 (Fla. 1990). A trial court "must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably established by the greater weight of the evidence." Id. (footnote omitted). However, a trial court may reject a claim that a mitigating circumstance has been proven, provided the record contains competent substantial evidence to support the rejection. See Mansfield v. State, 758 So.2d 636, 646 (Fla. 2000); Ferrell v. State, 653 So.2d 367, 371 (Fla. 1995).

First, Franqui argues that the trial court failed to find and weigh in mitigation his family history, including his abandonment by his natural parents. We disagree. The sentencing order reveals that the trial court expressly considered in great detail whether Franqui's family history, including his abandonment by his natural parents, was a mitigating circumstance. Indeed, the trial court made extensive findings and explained its reasoning for rejecting Franqui's family history as a mitigating circumstance. Based upon our review, we find that competent substantial evidence supports the trial court's conclusion.

Similarly, Franqui's contention that the trial court did not find and weigh as a mitigating circumstance his newfound maturity while incarcerated is without merit. Franqui's cousin testified at resentencing that Franqui had requested books on psychology, exercise, fitness, and mental health since his incarceration in order to improve himself. He also testified that Franqui had found religion since being incarcerated. It was this testimony pertaining to Franqui's self-improvement and faith that served as the basis for his alleged newfound maturity, as exemplified by defense counsel's argument during closing and at theSpencer hearing. The record reflects that the trial court not only considered this evidence, but found Franqui's self-improvement and faith while in custody was established as a mitigating circumstance and entitled to some weight.

Franqui also contends that the trial court failed to find and weigh as a mitigating circumstance the fact that he did not fire the fatal bullet. Although we have indicated that the fact that a defendant did not fire the fatal shot may be a mitigating factor, whether it actually is depends on the particular facts of the case. Here, it is uncontradicted that Franqui shot at Officer Bauer, striking him in the hip. Although this wound alone was not fatal, the medical examiner testified that his findings were consistent with the conclusion that Officer Bauer was first shot in the hip by a bullet which ricocheted off the pillar he took cover behind, causing him to fall forward and be struck by the fatal bullet fired by Gonzalez. Under the particular facts in this case, we find that the trial court did not err in considering, but ultimately rejecting, the fact that Franqui did not fire the fatal bullet as a mitigating circumstance.

Lastly, Franqui challenges the proportionality of his death sentence. In so doing, Franqui first contends that the trial court failed to include in its sentencing order findings that support the Enmund-Tison culpability requirement. We disagree. In its sentencing order, the trial court expressly found that Franqui was prepared to use lethal force to eliminate any impediment to his robbery plan and did not hesitate to actually use such force during the bank robbery. Indeed, the record demonstrates that Franqui surveyed the bank the day before the crime and observed the bank tellers being escorted to their drive-through booths; he came to the bank armed with a .9-mm handgun; and he fired the gun at Officer Bauer, striking him in the hip. Franqui was a direct, active participant in the bank robbery which resulted in Officer Bauer's death, and his actions not only exhibit a reckless indifference to life, but demonstrate that he intended lethal force to be used should he and his accomplices face any resistance during the robbery. Thus, we conclude the Enmund-Tison culpability requirement is satisfied.See San Martin v. State, 705 So.2d 1337, 1345-46 (Fla. 1997);Van Poyck v. State, 564 So.2d 1066, 1070-71 (Fla. 1990); DuBoise v. State, 520 So.2d 260, 265-66 (Fla. 1988); Diaz v. State, 513 So.2d 1045, 1048 (Fla. 1987).

Nonetheless, Franqui claims that his death sentence is disproportionate. Due to the uniqueness and finality of death, this Court addresses the propriety of all death sentences in a proportionality review. See Porter v. State, 564 So.2d 1060, 1064 (Fla. 1990). In conducting this review, this Court considers the totality of the circumstances in a case as compared to other cases in which the death penalty has been imposed, thereby providing for uniformity in the application of the death penalty.See Urbin v. State, 714 So.2d 411, 416-17 (Fla. 1998) (quotingTillman v. State, 591 So.2d 167, 169 (Fla. 1991)). The death penalty is reserved for only the most aggravated and the least mitigated of first-degree murders. See Urbin, 714 So.2d at 416;State v. Dixon, 283 So.2d 1, 7 (Fla. 1973).

In this case, the trial court found three aggravating circumstances: (1) the defendant had a prior conviction for a capital or violent felony (great weight); (2) the murder was committed during the course of a robbery and for pecuniary gain, merged (great weight); and (3) the murder was committed to avoid arrest and hinder law enforcement and the victim was a law enforcement officer, merged (great weight). The trial court found no statutory mitigating circumstances, but did find the following four nonstatutory mitigating circumstances: (1) Franqui's relationship with his children (little weight); (2) his cooperation with authorities (little weight); (3) the life sentences imposed on codefendants San Martin and Abreu (little weight); and (4) Franqui's self-improvement and faith while in custody (some weight).

To support his claim that his death sentence is disproportionate, Franqui primarily relies on Curtis v. State, 685 So.2d 1234 (Fla. 1996). We find such reliance to be misplaced. In Curtis, we found death to be a disproportionate penalty given the substantial mitigation established in the case, including defendant's age of seventeen years and the fact that the co-perpetrator who fired the fatal shot was sentenced to life. See id. at 1237. By contrast, in this case there is minimal mitigation when weighed against the aggravating circumstances. More importantly, in contrast to Curtis, Franqui was not a minor at the time of the offense and his codefendant who fired the fatal shot was sentenced to death. See Gonzalez v. State, 786 So.2d 559 (Fla. 2001).

We find the circumstances in this case are similar to other cases in which the death penalty has been imposed. For instance, in Armstrong v. State, 642 So.2d 730 (Fla. 1994), the defendant shot a police officer after the officer responded to a robbery in progress at a restaurant. The same three aggravating circumstances that exist in this case were found in Armstrong. The defendant in Armstrong also presented evidence of several nonstatutory mitigators. On appeal, this Court affirmed the death sentence. See id. at 740; see also Burns v. State, 699 So.2d 646 (Fla. 1997) (affirming death sentence for the murder of a law enforcement officer where avoid arrest and hinder law enforcement aggravating circumstances were found and merged, there was one statutory mitigating circumstance of no significant criminal history, and insignificant nonstatutory mitigation); Reaves v. State, 639 So.2d 1 (Fla. 1994) (affirming death sentence for the murder of a deputy sheriff, where the record supported the existence of two aggravating circumstances of prior violent felony and avoid arrest, no statutory mitigators, and three nonstatutory mitigators). Accordingly, we find death is a proportionate penalty in this case.

For the reasons stated above, we affirm Franqui's sentence.

It is so ordered.

HARDING and LEWIS, JJ., concur.

WELLS, C.J., concurs in result only with an opinion.

SHAW, J., concurs in part and dissents in part with an opinion, in which ANSTEAD and PARIENTE, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion, in which SHAW and PARIENTE, JJ., concur.

QUINCE, J., concurs in result only.