# Rafael Andres v. State of Florida

> Supreme Court of Florida · September 20, 2018 · 254 So. 3d 283

URL: https://www.frixlaw.com/law-library/cases/4316045

## Case

- **Full name:** Rafael ANDRES, Appellant, v. STATE of Florida, Appellee.
- **Court:** Supreme Court of Florida
- **Decided:** September 20, 2018
- **Citations:** 254 So. 3d 283
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4316045

## How later opinions describe it (automated extraction)

- holding the trial court properly sustained defense counsel’s objection to an improper comment by the prosecutor but did not abuse its discretion in denying the related motion for mistrial

## Opinion text

Supreme Court of Florida
____________

No. SC15-1095
____________

RAFAEL ANDRES,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

September 20, 2018

PER CURIAM.

Rafael Andres was convicted of one count of first-degree murder, one count

of armed burglary with assault or battery, one count of first-degree arson, and one

count of armed robbery for crimes that resulted in the death of Ivette Farinas, who

was the occupant of an efficiency apartment in Miami where Andres was hired to

perform renovation work. After the penalty phase, the jury recommended a

sentence of death by a vote of nine to three. Following the jury’s recommendation,

the trial court imposed a sentence of death. This is Andres’ direct appeal. We

have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
For the reasons that follow, we affirm Andres’ conviction for first-degree

murder but vacate his death sentence because we cannot conclude that the Hurst1

error was harmless beyond a reasonable doubt. Accordingly, we remand his case

to the trial court for a new penalty phase.

FACTS

The evidence introduced at trial during the guilt phase established the

following facts. On January 24, 2005, the day of the murder, Hazel Vaughn, the

victim’s neighbor, dropped her son off at school and returned home by 8:40 a.m.

Vaughn was doing chores outside when she heard a female moan coming from the

victim’s efficiency. Later, while standing by her kitchen sink, Vaughn saw a male

close the door to the victim’s efficiency, using the top of the door instead of the

doorknob, as he left the efficiency. Vaughn then saw the same male return to the

efficiency and leave once more carrying a red container as he walked to a van.

Shortly after the male left, Vaughn noticed thick smoke coming from the victim’s

efficiency and called 911 at approximately 12:50 p.m. In a photographic line up,

Vaughn later identified Andres as the male she saw coming and going from the

victim’s efficiency the day of the murder.

1. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).

-2-
Firefighters responded to Vaughn’s 911 call and arrived at the efficiency at

12:52 p.m. Upon entering the efficiency, Lieutenant Nelson Pagnacci saw flames

and smoke coming from a bedroom to the left of the entryway. In front of him, in

the kitchen area, Pagnacci saw the victim’s body, which he dragged out of the

burning efficiency. The victim was pronounced dead at the scene, and homicide

detectives were called to respond.

The victim and her boyfriend, Alberto Ruiz, had lived together for

approximately three years. For the first two years, the couple lived with Ruiz’s

parents at SW 74th Avenue and 16th Terrace in Miami. In April 2004, they moved

about four blocks away to the efficiency at 1131 SW 74th Avenue.

The house on the property where the efficiency was located had been sold in

November 2004, and the new owners, Zuzel Rodriguez and Jose Perez, began a

series of renovations in early December, including electrical work, plumbing,

painting, moving an air conditioning unit, plastering, and other repairs. They hired

Andres to perform this work. When Andres came to work in the mornings,

Rodriguez would give him the keys to the property, including the main house and

the efficiency. The owners also moved the door to the efficiency, from the back of

the house to a side alleyway; as a result, Andres had to move the outlet to the

refrigerator and the refrigerator itself.

-3-
Ruiz drove a milk delivery truck every day except Wednesday and Sunday.

On Wednesdays, Ruiz worked buying cars at auction. As a result, he would have

between $200 and $2,000 in cash in the efficiency. The victim worked the

afternoon shift at the La Carreta restaurant at Miami International Airport,

returning home around 11 p.m. The victim brought home cash tips each night.

On the day of the murder, Ruiz left for work at 4 a.m. Andres arrived

between 7 a.m. and 7:15 a.m., and Rodriguez gave him the keys. Rodriguez then

left for work. Andres was scheduled to complete a full day of work solely in the

main house.

That same day, the victim and her sister, Lisbeth Farinas, planned to run

errands together. The victim was to pick up Lisbeth at their parents’ house

between 9 and 9:15 a.m., so Lisbeth anticipated that her sister would leave the

efficiency no later than 9 a.m. By 9:30 a.m., Lisbeth, worried, began calling the

victim. She continued calling the victim until noon without any answer. Lisbeth

also tried calling Ruiz, finally reaching him at approximately 2 p.m. Ruiz also

tried calling the victim but got no answer.

At 3:05 p.m., Ruiz’s brother called Ruiz and told him that the area around

the efficiency was blocked off and television cameras were there. Ruiz arrived at

the scene around 5 p.m., and he was brought immediately to Miami-Dade

Detective Enrique Chavary. Detective Chavary took Ruiz to a police station,

-4-
questioned him, took a DNA sample, and obtained consent to search the efficiency.

At 6 p.m., the police called Lisbeth, and she went to the efficiency.

Not knowing that a fire or murder had occurred, Perez received a voicemail

from Andres that afternoon. Although the voicemail was recorded at 12:47 p.m.,

Andres stated it was “12:15 p.m.” and he was leaving Perez’s house to finish some

work at another home but would return to the Perez house later that afternoon.

Perez never saw Andres again.

Angie Gonzalez, Perez’s cousin, testified that she hired Andres to redo the

flooring in her new home after meeting him through Perez. On January 20, 2005,

four days before the murder, Gonzalez wrote Andres a check for $1,860, which

constituted half of his fee for the project. On the day of the murder, Gonzalez went

to her home and waited for Andres to arrive as scheduled, but he never arrived.

Gonzalez called Andres three times to inquire about his absence; Andres returned

her calls later that night to say he did not make it to her home due to a problem at

the Perez house. Gonzalez called Andres three more times the next day, but he

never returned her call. Gonzalez never saw Andres again, even though he left

expensive tools and equipment at her home.

On the day of the murder, police called Andres, who agreed to meet with

them at the police station the next morning. However, Andres did not appear as

agreed and could not be found. On January 30, 2005, detectives located Andres

-5-
near a shopping mall on a public street in Miami. Police subsequently found

Andres’ van in a rural area with an empty red gasoline container inside.

An autopsy was performed on the victim’s body at the medical examiner’s

office the day after the murder. The victim’s cause of death was determined to be

stab wounds to the chest and ligature strangulation. The victim’s face and chin had

large bruises and possibly an abrasion or scrape on the left side of her lower lip,

consistent with being punched. The victim’s chest had three stab wounds, which

penetrated the chest cavity and right and left lungs, causing hemorrhaging. The

victim’s thighs were covered in a trail of blood, which changed directions as it ran

down her legs, indicating the victim was upright when she sustained stab wounds

to the chest but subsequently went to a kneeling position. The bruises and

abrasions on the victim’s left knee were also consistent with being forced to her

knees. Ligature marks on the victim’s neck and hemorrhages in her eyes

confirmed that an object had been placed around her neck, and she struggled to

defend herself while being asphyxiated.

The lack of carbon monoxide in the victim’s body indicated that she died

before the fire started. The medical examiner estimated that the victim suffered for

up to thirty minutes before dying.

Crime scene officers and detectives discovered that the front door knob of

the efficiency had been forcibly removed, and there was evidence of tampering

-6-
with the lock. An arson investigator from the Miami-Dade Fire Department

determined that the fire was started with an ignitable liquid and an open flame on

the bed in the bedroom. Crime scene officers impounded several pieces of

evidence, including a bloody dishcloth found near the victim’s body, which was

confirmed to contain the presence of a mixture of the victim’s and Andres’ DNA.

Police later obtained footage of Andres using the victim’s debit card at several

places, including Home Depot and Advance Auto Parts, on the day of and days

following the murder. After a jury trial, Andres was found guilty as charged on all

counts and adjudicated guilty consistent with the jury verdicts.

During the penalty phase proceedings, Detective Bruce Roberson, a former

homicide detective for the City of Miami Police Department, testified that he

interviewed Andres regarding his involvement in the 1987 second-degree murder

of Linda Azcarretta. In that interview, Andres gave multiple accounts of how

Azcarretta died but ultimately confessed that he stabbed her while they were both

intoxicated from rock cocaine and later disposed of the knife.

Defense counsel presented several mitigation witnesses. Detective Roberson

and Andres’ 1987 attorney testified that Andres was remorseful when he confessed

to killing Azcarretta. Other testimony from corrections officers, inmates, and

family members indicated that Andres served as a prison trustee and informant,

-7-
understood the Bible, shared his food, taught others how to read, and was a good

brother and father figure.

After the penalty phase, the jury recommended a sentence of death by a vote

of nine to three. The trial court followed the jury’s recommendation and imposed a

death sentence.2 This appeal followed.

ANALYSIS

Andres raises twelve claims on appeal.3 We address the guilt phase claims

first, followed by the sufficiency of the evidence and Andres’ claim for relief

2. The trial court found the following aggravating factors and assigned the
noted weight: (1) Andres was previously convicted of a violent felony—the 1987
stabbing death of Linda Azcarretta (enormously great weight); (2) the capital
felony was committed while Andres was engaged in the commission of or an
attempt to commit burglary (some weight); (3) avoid arrest (very great weight); (4)
the capital felony was committed for pecuniary gain (great weight); (5) the murder
was heinous, atrocious, or cruel (extremely great weight). The court found no
statutory mitigating circumstances but did find the following nonstatutory
mitigating circumstances and assigned the noted weight: (1) Andres accepted
responsibility for his 1987 murder (some weight); (2) Andres was a drug user (no
weight); (3) Andres provided information to corrections officers (some weight); (4)
Andres had a positive and respectful behavior towards correction officers (minor
weight); (5) Andres volunteered as a trustee and performed his work with
diligence (no weight); (6) Andres taught other inmates how to read and provided
them with support (medium weight); (7) Andres led Bible study (some weight); (8)
Andres had a positive impact on the lives of others (moderate weight); (9) Andres
developed personal growth through Bible study (little weight); (10) Andres’ family
considered him to be a good father (minor weight); and (11) Andres helped care
for his family and taught them how to read (medium weight).

3. Andres’ claims on appeal are: (1) the State committed a discovery
violation when it failed to disclose a material change in the testimony of Alberto
Ruiz; (2) the trial court erred when it permitted the State to introduce hearsay; (3)

-8-
pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst. Because we

conclude that Andres is entitled to a new penalty phase pursuant to Hurst, we

decline to address his other penalty phase claims.

GUILT PHASE

Alleged Discovery Violation

The first issue before this Court is whether the State committed a discovery

violation when it failed to inform the defense of a material change in Alberto

Ruiz’s testimony from his deposition regarding his milk delivery route on the day

of the murder and whether the trial court erred in failing to hold a Richardson4

hearing regarding this change. This Court reviews the trial court’s determinations

regarding discovery violations for an abuse of discretion. See State v. Evans, 770

So. 2d 1174, 1183 (Fla. 2000).

the trial court erred in prohibiting Andres from pursuing certain lines of cross-
examination; (4) the trial court erred when it admitted into evidence the fruits of
the cell-site simulator search, namely DNA and other evidence collected from
Andres; (5) the trial court erred in allowing the State to ask the medical examiner
questions involving hypothetical scenarios; (6) the State engaged in misconduct
during closing argument; (7) the trial court erred in preventing Andres from
arguing lack of motive during closing arguments; (8) there is cumulative error in
the guilt phase; (9) Andres is entitled to Hurst relief; (10) Detective Roberson’s
penalty phase testimony about his belief that Andres was guilty of his previous
second-degree murder charge was inadmissible; (11) the trial court engaged in
improper doubling of aggravating factors; (12) there was insufficient evidence to
support the “avoid arrest” aggravator.
4. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

-9-
Once a witness has given a recorded statement, the State must disclose any

oral statement that constitutes a “material change” to the recorded statement.

Scipio v. State, 928 So. 2d 1138, 1142 (Fla. 2006). We emphasized the importance

of this prosecutorial obligation to the defense in Scipio:

[T]he Fifth District was correct in its determination that the State
committed a discovery violation when it failed to disclose to Scipio a
material change in the State investigator’s deposition statement.
Further, the Fifth District’s reliance on our decision in Evans is
consistent with our case law stressing disapproval of trial by ambush.
The State’s calculated failure to inform the defense of the
important and dramatic change in testimony of its medical examiner’s
investigator not only violated the prosecutor’s duty not to strike “foul”
blows, but undermined the very purpose of the discovery rules as set
out by this Court in Kilpatrick [v. State, 376 So. 2d 386 (Fla. 1979),]
and Evans, since the State was fully aware that the defense intended to
rely heavily on the testimony of the State’s investigator and would be
completely surprised by the witness’s changed testimony at trial.

928 So. 2d at 1145-46.

Failure to disclose an oral statement which constitutes a material change to a

witness’s recorded statement is a discovery violation that triggers a full Richardson

hearing. See, e.g., Smith v. State, 7 So. 3d 473, 505-06 (Fla. 2009); Evans, 770 So.

2d at 1179. While this Court has not specifically defined “material change,” some

are obvious. For example, in Evans, the “material change” was a change in the

witness’s testimony that transformed the witness from a witness who “didn’t see

anything” into the only eyewitness to the crime. 770 So. 2d at 1182. “During a

Richardson hearing, the trial court must inquire as to whether the violation (1) was

- 10 -
willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect

on the aggrieved party’s trial preparation.” Id. at 1183. The harmless error

analysis for a discovery violation is “whether there is a reasonable possibility that

the discovery violation procedurally prejudiced the defense.” State v. Schopp, 653

So. 2d 1016, 1020 (Fla. 1995). In other words, a discovery violation can be

considered harmless only if the appellate court can determine beyond a reasonable

doubt that the defense was not “materially hindered” by the discovery violation.

Id.

During Ruiz’s deposition, which took place approximately five years before

trial and four years after the victim’s death, the defense questioned Ruiz about his

delivery schedule on the day of the murder. Ruiz replied, “That day specifically

the closest I was to [the efficiency] was Coral Way and 74th Avenue—well, 75th

because there was a detour and it becomes 75th.” However, at some point during

the State’s trial preparations, Ruiz altered his original recorded statement from the

deposition, asserting instead that he was not actually at the stated address on the

day of the murder. As to this change, Ruiz explained that he was confused in the

original deposition, leading him to testify about a different route, which he actually

took on Tuesdays. Because the State did not disclose this change in Ruiz’s

testimony, the defense only discovered it when Ruiz was on the stand at trial.

- 11 -
The defense immediately objected and requested a Richardson hearing. The

trial court, after hearing from both sides, held that the change in testimony was not

material but, rather, a clarification of the testimony given at Ruiz’s deposition. On

the stand, Ruiz explained that he was confused by the questions at deposition,

leading him to misspeak regarding the answer. Ruiz was a Spanish speaker;

therefore, the deposition questions and his deposition testimony, as well as his trial

testimony, were translated from English into Spanish and Spanish into English,

respectively.

We conclude that the trial court did not abuse its discretion by failing to

conduct a full Richardson hearing after determining that Ruiz’s testimony at trial

was merely a clarification of his prior deposition testimony. See Knight v. State,

76 So. 3d 879, 887-88 (Fla. 2011) (holding that a Richardson hearing was not

required where the State ordered DNA comparisons, which indicated that the

defendant could not be excluded, even though the defense planned to rely on the

evidence).

Even if there was a discovery violation requiring a full Richardson

hearing, while the trial court did not conduct a formal Richardson hearing, it did

inquire when the State learned of Ruiz’s change in testimony. Additionally, the

defense was able to effectively show through cross-examination that Ruiz had

conveniently changed his testimony on the eve of trial. There is no indication that

- 12 -
the State’s actions were willful, that the change was “material,” or that the change

“materially hindered” Andres’ trial preparation, as the most the defense could have

accomplished was to impeach Ruiz with his prior inconsistent statement, as they

did. Accordingly, we conclude that there was no procedural prejudice because

there is no reasonable possibility that the discovery violation prejudiced the

defense or that the defense was materially affected. See Smith, 7 So. 3d at 505-

506.

For all these reasons, Andres is not entitled to relief on this claim.

Hearsay

Andres next argues that the trial court erred when it allowed the State to

admit what he contends is hearsay testimony from the officers who investigated the

case regarding (A) why they chose not to further investigate Ruiz as a potential

suspect in the case and (B) the identity and death of Juan Baccalau.5 “The

admission of evidence is within the sound discretion of the trial court, constrained

by the application of the rules of evidence and the principles of stare decisis.”

Hayward v. State, 183 So. 3d 286, 325 (Fla. 2015) (citing Davis v. State, 121 So.

3d 462, 481 (Fla. 2013)). Hearsay is defined as “a statement, other than one made

5. Andres also argued that the trial court erred in admitting Hazel Vaughn’s
testimony in relation to her belief about who started the fire. We do not address
this claim because Andres concedes in his initial brief to this Court that this
statement is not hearsay. Initial Br. of Appellant at 30.

- 13 -
by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2016). Where

testimony is not offered to prove the truth of the matter asserted, or where hearsay

exceptions apply, the testimony can be deemed admissible. Penalver v. State, 926

So. 2d 1118, 1131-32 (Fla. 2006).

A. Officers’ Investigation into Ruiz as a Suspect

Andres contends that the trial court improperly permitted officers to testify

about why they chose not to further investigate Alberto Ruiz, the victim’s live-in

boyfriend, as a potential suspect in the case. Based on the specific facts of this

case, we conclude that error, if any, was harmless beyond a reasonable doubt.

The testimony of both Sergeant McCoy, the supervising officer in the case,

and Detective Gallagher, the lead detective, was presented by the State in response

to the defense argument that detectives failed to investigate Ruiz. Specifically, on

cross-examination the defense made Sergeant McCoy place dots on a map of every

stop of Ruiz’s milk route and then questioned whether he drove to each stop along

the route as part of his investigation. This testimony was intended by the defense

to paint the picture of an incomplete investigation into Ruiz as a potential suspect

in the crime.

Additionally, Gallagher was called as a witness after the defense had already

introduced its theory regarding an incomplete investigation during McCoy’s

- 14 -
testimony. Thus, we conclude that the defense opened the door to the questions

that Andres now contends were improper. See State v. Baird, 572 So. 2d 904, 908

(Fla. 1990) (“The testimony would have been admissible on redirect after the

defense attempted, during cross-examination, to establish that Mr. Baird had been

targeted for prosecution. . . . It was clear from the question eliciting the challenged

response that the testimony was merely offered to rebut the defense’s

contention . . . .”).

B. Identity and Death of Baccalau

Andres next argues that Detective Chavary’s testimony concerning the

identity and death of Juan Baccalau6 was inadmissible hearsay and violated his

Sixth Amendment Confrontation Clause rights. U.S. Const. amends. VI, XIV; art.

I, §§ 9, 16, Fla. Const.; see Crawford v. Washington, 541 U.S. 36, 50-51 (2004).

This Court reviews a trial court’s admission of evidence over a defense objection

regarding the Confrontation Clause de novo. See McWatters v. State, 36 So. 3d

613, 637 (Fla. 2010).

Because none of Baccalau’s statements were admitted against Andres, there

can be no violation of the Confrontation Clause. Id. at 638; see Crawford, 541

6. Juan Baccalau was a landscaper who occasionally worked with Andres.
During the defense’s cross-examination of Jose Perez, the defense inquired about
another individual, the “Dominican,” who also worked on the job site, and
attempted to insinuate that he may have committed the crime.

- 15 -
U.S. at 51. Chavary’s testimony that the picture shown to him during trial

accurately portrayed Baccalau was based on Chavary’s personal observations, and

he was subjected to cross-examination by Andres’ counsel. Additionally, the death

certificate was only used for the purpose of proving that Baccalau was deceased at

the time of the trial. Accordingly, there was no Confrontation Clause violation.

Thus, Andres is not entitled to relief on this claim.

Cross-Examination

Andres argues that the trial court improperly limited cross-examination of

three witnesses: (A) Jose Perez, (B) Lisbeth Farinas, and (C) Alberto Ruiz.

“Cross-examination of a witness is limited to the subject matter of the direct

examination and matters affecting the credibility of the witness.” § 90.612(2), Fla.

Stat. (2017). The trial judge has wide discretion to impose reasonable limits on

cross-examination. See e.g., Gosciminski v. State, 132 So. 3d 678, 706 (Fla. 2013)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); Moore v. State, 701

So. 2d 545, 549 (Fla. 1997).

A. Jose Perez

First, with respect to the testimony of Jose Perez, who owned the efficiency

rented by the victim and Ruiz, Andres contends that he should have been permitted

to ask Perez on cross-examination if there was a particular reason why Andres did

not return to his home on the day of the murder, or any day thereafter, in order to

- 16 -
negate the inference of guilt made by the State. Perez testified on direct

examination for the State that Andres never returned to his home after the murder

to complete the repair work following the fire. Over defense objection, the

prosecutor asked: “In the process of reconstructing your home and needing

workers, [did] you ever hear from the defendant, about helping you with the

reconstruction project[?]” The trial court overruled the objection, and the

prosecutor asked, “Did you ever see the defendant again?” Perez replied:

“Negative.”

In fact, Perez told Andres to not return. However, on cross-examination,

when the defense attempted to ask Perez why Andres never returned, the State

objected, arguing this was inadmissible hearsay and beyond the scope of direct

examination. The prosecutor argued that the scope was narrowly limited by the

State’s question whether Perez had seen Andres again, not why, and also by the

fact that the State had not asked about that precise phone call. The trial court

agreed and sustained the objection.

We conclude that even if there was error, it was harmless beyond a

reasonable doubt. The testimony presented at trial established that, in addition to

not returning to Perez’s home, Andres also failed to return to the Gonzalez home,

where he left valuable tools. Additionally, the line of questioning could have

- 17 -
opened the door to testimony from Perez explaining why he did not want Andres to

return to his home, which would likely have been detrimental to Andres’ case.

B. Lisbeth Farinas

Next, Andres argues that the trial court abused its discretion when it limited

the defense’s cross-examination of the victim’s sister, Lisbeth Farinas. The trial

court allowed Lisbeth to testify that her sister and Ruiz had a “good relationship,”

but denied the defense the opportunity to explore that statement on cross-

examination. Ultimately, the court allowed the defense to ask a single question:

“Did you ever witness a verbal argument between them,” to which Farinas

responded, “No.”

The trial court limited the cross-examination because Lisbeth testified that

she never saw any violence in the relationship and that the victim and Ruiz had a

good relationship. Even if the State opened the door to questioning about the

victim’s and Ruiz’s relationship, Lisbeth’s response that she did not know of any

issues in their relationship ended the inquiry. No evidence, beyond the hearsay

testimony of the victim’s coworker, could have been used by the defense to

impeach Lisbeth on this issue. Thus, we conclude that the trial court’s ruling as to

the cross-examination of Lisbeth Farinas was not an abuse of discretion.

C. Alberto Ruiz

- 18 -
Finally, Andres argues that the trial court improperly limited the cross-

examination of Ruiz, the victim’s boyfriend. Andres contends that the trial court’s

statements forced him to abandon his right to cross-examine Ruiz about this

matter. We disagree.

At trial, Ruiz testified that he did not recall Andres doing any work inside

the efficiency. The defense attempted to ask Ruiz on cross-examination about his

prior statement to detectives that Andres had done work in the efficiency near the

bed. At sidebar, the trial court cautioned the defense about the potential

implications of asking Ruiz about the work done inside the efficiency, indicating

that it could lead to the State questioning Ruiz about his belief that Andres had

previously burglarized the efficiency.

The trial court cautioned the defense about the potential implications of

pursuing a particular line of questioning. In turn, the defense made the strategic

choice to limit cross-examination on this matter to minimize any potential

prejudice to Andres.

Thus, Andres is not entitled to relief on this claim with respect to any of the

witnesses.

Cell-Site Simulator Search

Andres next argues that the trial court erred when it denied his motion to

suppress evidence that the police obtained, following their use of a cell-site

- 19 -
simulator search (often referred to as “Stingray”) on Andres’ mobile phone.7 On

January 26, 2005, detectives obtained a pen register8 and “trap and trace” order for

Andres’ cell phone pursuant to section 934.33, Florida Statutes (2005). On

January 27, the police obtained a warrant to search Andres’ body, home, and van.

The State used a cell-site simulator to locate Andres and serve the warrant. Once

they found him, the officers took Andres into custody, photographed his body, and

took DNA samples. The photographs and samples were introduced in evidence at

trial.

Andres filed a motion to suppress statements and evidence obtained. In his

motion, Andres requested that the court suppress Andres’ statements, the

7. We take notice of the United States Supreme Court’s recently issued
decision in Carpenter v. United States, 138 S. Ct. 2206 (2018). However, we
conclude that its holding is not applicable to this case, where officers used real-
time cell-site location information to locate Andres for the purposes of executing
the warrant. See id. at 2220 (“Our decision today is a narrow one. We do not
express a view on matters not before us: real-time CSLI or ‘tower dumps’ (a
download of information on all the devices that connected to a particular cell site
during a particular interval.)”).

8. “A ‘pen register’ records the telephone numbers dialed from the target
telephone and a ‘trap and trace device’ records the telephone numbers from
incoming calls to the target telephone.” Tracey v. State, 152 So. 3d 504, 506 (Fla.
2014). In order to obtain an order for a pen register or trap and trace, the State
need only present “specific and articulable facts showing that there are reasonable
grounds to believe the contents of a wire or electronic communication or the
records of other information sought are relevant and material to an ongoing
criminal investigation.” § 934.23(5), Fla. Stat. (2005). There is no requirement of
probable cause.

- 20 -
photographs taken of Andres that day, and the initial taking of Andres’ DNA. The

motion was denied. During jury selection, Andres moved for the trial court to

reconsider and suppress all the evidence from the body warrant. Andres argued

that the law changed under Tracey v. State, 152 So. 3d 504 (Fla. 2014), which was

decided in October 2014 after the trial court’s initial ruling in this case. Andres

claimed that a probable cause warrant was required at the time the cell-site

simulator was used to find Andres and no exceptions to the warrant requirement

applied.

In Tracey, law enforcement learned from a confidential informant that

Tracey had obtained multiple kilograms of cocaine to distribute and used Tracey’s

Metro PCS telephone number to communicate with the confidential informant.

152 So. 3d at 506-07. Based only on those factual allegations, officers obtained an

order authorizing the installation of a “pen register” and “trap and trace device” on

Tracey’s cell phone. Id. at 506. This Court held that the evidence obtained as a

result of the search should be suppressed because probable cause did not support

the search, and no warrant based on probable cause authorized the use of Tracey’s

real-time cell-site location information to track him. Id. at 526.

Andres’ reliance on Tracey is misplaced. In this case, as opposed to Tracey,

the police had a warrant, obtained after providing probable cause, to seize and

- 21 -
search Andres’ body, home, and van. The evidence obtained—Andres’ DNA and

photographs of his body—was well within the scope of the warrant.

Even if the use of the cell-site simulator was improper, Andres would still

not be entitled to relief. See Davis v. United States, 564 U.S. 229, 232 (2011)

(“[S]earches conducted in objectively reasonable reliance on binding appellate

precedent are not subject to the exclusionary rule.”); Fitzpatrick v. State, 900 So.

2d 495, 514 (Fla. 2005) (“[E]ven if there was police misconduct in pressuring

Fitzpatrick to provide a blood sample, the DNA evidence was properly admitted

because Fitzpatrick’s DNA ultimately would have been discovered.”).

Thus, Andres is not entitled to relief on this claim.

Questioning of Medical Examiner

Andres next argues that the State improperly elicited testimony from the

medical examiner, Dr. Lew, outside of his expertise through the use of certain

questions that asked Dr. Lew to contemplate hypothetical scenarios. The party

requesting the testifying expert has the burden of laying a foundation with

qualifying information about the expert’s professional background. See Evans v.

State, 808 So. 2d 92, 102 (Fla. 2001).

When reviewing the trial court’s admission of an expert witness’s testimony,

this Court applies an abuse of discretion standard. See Calloway v. State, 210 So.

3d 1160, 1182 (Fla. 2017). The State qualified Dr. Lew, the deputy chief medical

- 22 -
examiner, as an expert witness who had sufficient knowledge and training within

the field of pathology. The medical examiner conducted an extensive review of all

the medical documents and photographs concerning the victim’s case file.

Accordingly, the State laid a proper foundation to allow Dr. Lew to provide an

opinion on the cause and manner of the victim’s death. This Court has required

that the party questioning the expert must base any hypothetical on “facts that are

supported by evidence which has been introduced at trial.” Smith, 7 So. 3d at 501.

That was the case here. Indeed, when the State attempted to go beyond the scope

of the evidence presented, the trial court sustained the defense’s objections.

Thus, Andres is not entitled to relief on this claim.

State’s Closing Argument

Next, Andres raises several claims of impropriety during the prosecutor’s

guilt phase closing argument: (A) burden-shifting, (B) denigrating the defense, (C)

misstating the law, and (D) inflammatory remarks. Andres also argues that the

cumulative effect of the improper remarks amounted to harmful error.

As to improper remarks during the prosecutor’s closing argument, this Court

explained in Cardona v. State, 185 So. 3d 514 (Fla. 2016):

We review trial court rulings regarding the propriety of comments
made during closing argument for an abuse of discretion. Salazar v.
State, 991 So. 2d 364, 377 (Fla. 2008). Where the comments were
improper and the defense objected, but the trial court erroneously
overruled defense counsel’s objection, we apply the harmless error
standard of review. See Snelgrove v. State, 921 So. 2d 560, 568 (Fla.

- 23 -
2005); Doorbal v. State, 837 So. 2d 940, 956-57 (Fla. 2003). This
standard involves placing “the burden on the state, as the beneficiary
of the error, to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated,
that there is no reasonable possibility that the error contributed to the
conviction.” Ibar v. State, 938 So. 2d 451, 466 (Fla. 2006) (citing
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)).

Id. at 520. Where the trial court sustains the objection, it is incumbent upon

counsel to either request a curative instruction or move for a mistrial to preserve

the error on appeal. Conversely, when an improper comment is made, objected to

by counsel, and sustained by the trial court and corrected by the issuance of a

curative instruction, this Court has held that the proper standard of review

governing the denial of a motion for a mistrial is abuse of discretion. Chamberlain

v. State, 881 So. 2d 1087, 1098 (Fla. 2004); Rivera v. State, 859 So. 2d 495, 512

(Fla. 2003); Anderson v. State, 841 So. 2d 390, 403 (Fla. 2003).

A. Improper Burden Shifting

As to improper burden shifting, Andres contends that the prosecutor made

various comments throughout the rebuttal closing argument, including “No

evidence that this defendant is not guilty;” “[W]hat is on the not guilty side?

Nothing;” “Innocent people don’t need alibis,” and “Where is evidence? Where is

the evidence before you?” Andres argues that the prosecutor emphasized this

argument by using a visual aid which depicted “The Scales of Justice.” The visual

aid was a poster board approximately two feet by three feet with a depiction of a

- 24 -
balance scale. The arms of the scale were in equipoise. On the side marked

“Guilty,” the State listed thirteen pieces of evidence, above it writing:

“EVIDENCE, EVIDENCE.” On the “Not Guilty” side of the scale, the State

wrote: “Speculation, guess.”

The trial court sustained the defense objection to the comment—“What is on

the not guilty side? Nothing,”—and gave a curative instruction requiring that the

jury disregard the previous statement. However, the court overruled objections to

other comments, including “Where is evidence? Where is the evidence before

you?” The trial court also overruled the defense’s objection to the State’s use of

the “scales of justice” example.

The State made all of these comments referring to the lack of evidence in the

defense’s case in rebuttal after the defense made numerous comments relating to

the State’s lack of evidence, including: “We have brought certain evidence about

other people just so that you would have a better understanding of the police

investigation here. I suggest to you that the prosecutor’s entire case is internally

inconsistent.”; “Jurors cannot, I hope, base your verdict on assumption, on

guesswork and on speculation”; and “We know that there [were] problems with

this investigation, Detective Gallagher admitted from the beginning and it was

agreed to that he lost some evidence.” Thus, in making the above comments, the

State was calling the jury’s attention to the fact that its case against Andres was

- 25 -
supported by the evidence presented, whereas Andres’ insistence that he was

innocent was not.

While the State cannot comment on the defendant’s failure to present

evidence, there is no impropriety in observing, in response to arguments made by

the defense, that the defense’s theory of this case is not supported by actual

evidence. See Barwick v. State, 660 So. 2d 685, 694 (Fla. 1995) (classifying the

statement, “what in this courtroom, what evidence, what fact, what testimony, what

anything have you heard . . . would create a reasonable doubt in your mind what he

has done, what he is guilty of. Nothing,” as invited response where defendants

used closing to try to place doubt in jury’s mind that prosecution was hiding

evidence), receded from on other grounds by Topps v. State, 865 So. 2d 1253,

1258 n.6 (Fla. 2004); Dufour v. State, 495 So. 2d 154, 160-61 (Fla. 1986) (holding

that the statement, “[Y]ou haven’t . . . heard any evidence that . . . Dufour had any

legal papers” did not constitute reversible error as the statement “fell into the

category of an ‘invited response’ by the preceding argument of defense counsel

concerning the same subject”). Accordingly, the trial court did not err in

overruling the defense’s objections to these comments.

B. Denigrating the Defense

Next, Andres argues that the prosecution denigrated the defense by

persistently ridiculing the defense’s case as “speculation,” “guessing,” and

- 26 -
“coincidences,” and warning jurors the defense was trying to “distract” them. The

prosecutor revived this theme in her rebuttal closing.

This Court has held that arguments accusing the defense of trying to

“distract” or confuse jurors are improper. See, e.g., Cardona, 185 So. 3d at 523-

25. In Cardona, the prosecutor accused the defense of using “diversionary tactics”

and argued that the defense was trying to “cloud” and “muddle” the issues. Id. at

523. The comments in this case do not rise to the same level of impropriety as

those in Cardona. In Cardona, the prosecutor made other significantly more

prejudicial statements that undermined the jury’s ability to render a fair and

impartial verdict. Additionally, in this case, as opposed to Cardona, the trial court

sustained a number of objections to the comments. Thus, we conclude there was

no error.

C. Misstatement of the Law

Andres next argues that the State misstated the law when it repeatedly told

the jury that an intentional killing is necessarily first-degree murder. Specifically,

the prosecutor stated that second-degree murder is “where you intend to do an act

but you don’t intend to kill them.” Reading the statements in the proper context, it

is clear that the prosecutor attempted to distinguish the premeditation element of

first-degree murder when she stated “when you think about the intent to kill” and

second-degree murder when she stated it is “done from ill-will, hatred, spite . . .

- 27 -
you didn’t think about it before you did it.” Importantly, in response to a sustained

objection, the trial court informed the jury that it would properly instruct the jury

as to the law. Thus, in context, with the trial court’s sustained objection and

explanation of the case law when instructing the jury, any error was harmless

beyond a reasonable doubt. See Almeida v. State, 748 So. 2d 922, 927 (Fla. 1999).

D. Inflammatory

Next, Andres argues that the following comments were improper and

inflammatory. First, the prosecutor argued during closing arguments that “Andres

took [the victim] to the torture chair” and painted an emotional picture of the

victim “beginning to choke on her own blood.” Additionally, the State referred to

Ruiz’s comment on the stand that his “life was ruined that day.” The defense

objected, arguing that such comments were inflammatory. The judge sustained the

first objection but overruled the second and third. In Cardona, we explained:

[A] bedrock principle of our criminal justice system is that
every effort must be made in any trial—regardless of whether the case
involves such heart-wrenching circumstances—to ensure that the
jurors base their decision, not on sympathy for the victim or prejudice
against the defendant, but solely on the facts elicited during trial and
the law instructed by the trial court.

185 So. 3d at 519.

As to the first comment regarding the “torture chair,” the trial court properly

sustained the defense’s objection, and it was not an abuse of discretion to deny the

defense’s motion for a mistrial. Next, with respect to the State’s comment that the

- 28 -
“victim began to choke on her own blood,” this statement was not inflammatory,

but, rather, an accurate depiction of what happened to the victim based on the

medical examiner’s testimony. Finally, with respect to the State’s comments

regarding Ruiz, again, the State was only repeating Ruiz’s testimony from earlier

in the trial. Accordingly, we conclude that the trial court did not err with respect to

these comments.

E. Cumulative Error

Finally, Andres argues that the cumulative effect of all of the prosecutor’s

improper comments warrants a new trial. In a case such as this, where all of the

improper comments were objected to, this Court considers whether, when taken

together, the State can prove that the prosecutor’s improper comments were

harmless beyond a reasonable doubt. See DiGuilio, 491 So. 2d at 1135-36. The

Court does “not examine allegedly improper comments in isolation.” Card v.

State, 803 So. 2d 613, 622 (Fla. 2001). A prosecutor’s conduct “mandates reversal

where a prosecutor ‘exceed[s] the bounds of proper conduct and professionalism

and provide[s] a “textbook” example of overzealous advocacy.’ ” Cardona, 185

So. 3d at 516 (quoting Gore v. State, 719 So. 2d 1197, 1202 (Fla. 1998)).

The prosecutor in this case made improper comments during closing

arguments, to which the trial court properly sustained the defense’s objections. As

to the objected-to comments for which the trial court overruled the objections, the

- 29 -
State made comments relating to the lack of evidence supporting the defense’s

theory of the case and comments tending to denigrate the defense. However, the

cumulative effect of all of the comments was harmless beyond a reasonable doubt.

When the trial court sustained the defense objections, the State backed away from

the argument. Additionally, no single improper statement or line of argument

became the theme or main focus of the State’s closing arguments, as the “justice

for Lazaro” argument was in Cardona. See Cardona, 185 So. 3d at 521-22.

Accordingly, some of the State’s actions and comments, though unprofessional and

questionable, did not rise to the same level of impropriety exhibited in Cardona.

Thus, Andres is not entitled to relief on this claim.

Defense Closing Arguments

Andres next argues that the trial court improperly prevented defense counsel

from arguing lack of motive as a basis for reasonable doubt and inferences from

the evidence during closing arguments.

First, as to Andres’ contention that the trial court improperly prevented him

from arguing lack of motive, Andres has mischaracterized the trial court’s ruling.

Defense counsel stated: “Questions about that, that means that you have doubts.”

By arguing that if the jury had questions as to Andres’ motive to commit the crime,

they could not find Andres guilty of the crime because there is a reasonable doubt

as to whether Andres committed the crime, defense counsel improperly

- 30 -
characterized motive as an element of first-degree murder. Therefore, the State’s

objection was properly sustained by the trial court. Notwithstanding, defense

counsel could have continued to argue this point, rephrasing to clarify that motive

is not an element of first-degree murder that the State must prove beyond a

reasonable doubt.

Next, Andres argues that the trial court improperly prevented defense

counsel from arguing inferences drawn from the evidence. This argument is

without merit. It is true that counsel may argue against the State’s case “using all

reasonable inferences that might be drawn from the evidence.” Rogers v. State,

844 So. 2d 728, 733 (Fla. 5th DCA 2003). However, to be reasonable, the

“inferences drawn from admitted or proven facts must logically flow from the facts

so admitted or proved. An illogical or unreasonable inference does not have the

force of evidence” and will not be admissible. Miller v. State, 75 So. 2d 312, 315

(Fla. 1954). As none of the inferences defense counsel attempted to use were

based on the facts in evidence, we conclude that the trial court did not abuse its

discretion.

Thus, Andres is not entitled to relief as to this claim.

- 31 -
Guilt Phase Cumulative Error

Andres next argues that he is entitled to relief based on the cumulative error

in the guilt phase of his trial. As to guilt phase cumulative error, we have

explained:

Having concluded that multiple errors occurred in this case, we
proceed to consider the cumulative effect of those errors to determine
whether those errors are harmless. See McDuffie[ v. State], 970 So. 2d
[312,] 328 [(Fla. 2007)] (conducting a cumulative harmless error
analysis where multiple preserved errors occurred). Harmless error
analysis places the burden upon the State, as beneficiary of the errors,
to prove there is “no reasonable possibility that the error contributed
to” the defendant’s conviction. DiGuilio, 491 So. 2d at 1138. As we
have repeatedly stressed, the harmless error test “is not a sufficiency-
of-the-evidence, a correct result, a not clearly wrong, a substantial
evidence, a more probable than not, a clear and convincing, or even an
overwhelming evidence test” but the “focus is on the effect of the
error on the trier-of-fact.” Id. at 1139.

Evans v. State, 177 So. 3d 1219, 1238 (Fla. 2015).

In this case, we concluded that the trial judge impermissibly limited Andres’

ability to cross-examine Jose Perez regarding why Andres failed to return to

Perez’s home, and that the prosecutor made a handful of objectionable improper

closing arguments, for which several objections were sustained. However, we also

concluded that both of these errors were harmless beyond a reasonable doubt.

Ultimately, we conclude that even when considered cumulatively, these errors

were harmless beyond a reasonable doubt.

Thus, Andres is not entitled to relief on his claim of cumulative error.

- 32 -
Sufficiency of the Evidence

Although Andres does not contest the sufficiency of the evidence, this Court

has a mandatory obligation to review the sufficiency of the evidence in every case

in which a sentence of death has been imposed. See Jones v. State, 963 So. 2d 180,

184 (Fla. 2007); Fla. R. App. P. 9.142(a)(5) (“[I]n death penalty cases, whether or

not insufficiency of the evidence or proportionality is an issue presented for

review, the court shall review these issues and, if necessary, remand for the

appropriate relief.”). “In determining the sufficiency of the evidence, the question

is whether, after viewing the evidence in the light most favorable to the State, a

rational trier of fact could have found the existence of the elements of the crime

beyond a reasonable doubt.” Simmons v. State, 934 So. 2d 1100, 1111 (Fla. 2006)

(quoting Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)). Evidence is

insufficient “in a circumstantial evidence case if the [S]tate fails to present

evidence from which the jury can exclude every reasonable hypothesis except that

of guilt.” Orme v. State, 677 So. 2d 258, 262 (Fla. 1996) (quoting State v. Law,

559 So. 2d 187, 188 (Fla. 1989)).

The record contains sufficient evidence to support Andres’ conviction for

the first-degree murder of Ivette Farinas. The evidence at trial established that

Andres bound the victim with tape, forced her on her knees, stabbed her, and

strangled her with the cord to a rice cooker. The victim’s next-door neighbor

- 33 -
observed Andres coming back and forth from the victim’s efficiency and saw

Andres holding a red container shortly before a fire was set to the victim’s

efficiency.

The evidence also establishes that Andres called the owner of the efficiency,

the victim’s landlord, claiming he was calling at a different time than actually

recorded, to tell him that he would return later after he finished work at another

home. Andres never went to the other home, nor did he retrieve expensive items

he left behind at that home. Andres was then observed on video at Home Depot

purchasing items with the victim’s debit card and at Bank Atlantic withdrawing

money from the victim’s checking account. Andres subsequently checked into the

Miccosukee Resort to gamble and later abandoned his van in a remote, rural

location. Inside the van, among other things, was a red container similar to the one

seen by the victim’s next-door neighbor being carried by Andres the day of the

murder. Last, and most notably, a mixture of the victim’s and Andres’ DNA was

found on a bloody dishcloth close to the victim’s body inside the efficiency.

Thus, competent, substantial evidence supports Andres’ conviction for the

first-degree murder of Ivette Farinas.

HURST

Andres’ sentence of death was imposed in violation of the Sixth Amendment

to the United States Constitution pursuant to the United States Supreme Court’s

- 34 -
holding in Hurst v. Florida and article I, section 22, of the Florida Constitution, as

this Court fully explained in Hurst. Specifically, in Hurst v. Florida, the Supreme

Court held that Florida’s capital sentencing scheme, under which Andres was

sentenced to death, was unconstitutional, stating: “The Sixth Amendment requires

a jury, not a judge, to find each fact necessary to impose a sentence of death. A

jury’s mere recommendation is not enough.” 136 S. Ct. at 619.

On remand, this Court held that Hurst error occurs when “the judge rather

than the jury ma[kes] all the necessary findings to impose a death sentence.” 202

So. 3d at 67. This Court then established the test for determining whether a Hurst

error is harmless beyond a reasonable doubt, which we summarized in Davis v.

State, 207 So. 3d 142 (Fla. 2016): “As applied to the right to a jury trial with

regard to the facts necessary to impose the death penalty, it must be clear beyond a

reasonable doubt that a rational jury would have unanimously found that there

were sufficient aggravating factors that outweighed the mitigating circumstances.”

Id. at 174; see Hurst, 202 So. 3d at 65-68. We turn now to review whether the

Hurst error in Andres’ case was harmless beyond a reasonable doubt.

The trial court imposed Andres’ death sentence following the jury’s

nonunanimous recommendation of death by a vote of nine to three. This Court is

unable to determine or speculate why the dissenting jurors voted for a life

sentence. This Court cannot determine whether these jurors did not find that

- 35 -
sufficient aggravating factors were proven to impose a sentence of death, that the

aggravation did not outweigh the mitigation, or, for some other reason, determined

that death was not an appropriate sentence. Thus, the Hurst error was not harmless

beyond a reasonable doubt. Accordingly, we vacate the sentence of death and

remand for a new penalty phase.

CONCLUSION

For the reasons stated above, we affirm Andres’ conviction but vacate his

death sentence and remand his case for a new penalty phase.

It is so ordered.

LEWIS, QUINCE, and LABARGA, JJ., concur.
LAWSON, J., concurs specially with an opinion.
PARIENTE, J., concurs in part and dissents in part with an opinion.
CANADY, C.J., and POLSTON, J., concur in result only as to the convictions and
dissent as to the sentence.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LAWSON, J., concurring specially.

I fully concur in that portion of the opinion affirming Andres’s conviction,

but concur specially in the decision to reverse the sentence of death pursuant to

Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).

See Okafor v. State, 225 So. 3d 768, 775-76 (Fla. 2017) (Lawson, J., concurring

specially).

- 36 -
PARIENTE, J., concurring in part and dissenting in part.

I concur that Andres is entitled to a new penalty phase pursuant to Hurst.9

However, I dissent as to the failure to grant Andres a new trial based on cumulative

error, which hindered Andres’ ability to effectively present the defense theory that

the victim’s live-in boyfriend, Alberto Ruiz, was actually responsible for the

victim’s death. That defense was significantly undermined by four errors in this

case: (1) the State’s failure to disclose Ruiz’s material change in testimony as to

his alibi, (2) the trial court’s error in allowing the State to repeatedly introduce the

hearsay testimony of Sergeant McCoy and Detective Gallagher that they did not

consider Ruiz a suspect, (3) the trial court’s error in not allowing the defense to

inquire on cross-examination why Andres did not return to the Perez home, and (4)

the State’s improper comments during closing arguments. When considered

cumulatively, it is impossible to conclude that these errors, which were properly

preserved in the trial court, were harmless beyond a reasonable doubt.

Discovery Violation

First, the State improperly failed to disclose the material change in Alberto

Ruiz’s testimony regarding his delivery route on the day of the murder. At trial

and in deposition, Ruiz stated that he would sometimes stop at his home while

9. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).

- 37 -
making deliveries. During the deposition taken in 2009, Ruiz responded that the

closest he was to the crime scene on that day was Coral Way and 74th or 75th

Avenue, which was relatively close to the efficiency. However, during trial in

2014, Ruiz changed his earlier testimony, explaining that he had misspoken and,

instead, was on a different delivery route, which did not take him close to his

home.

The defense immediately objected and asked to address the court regarding

the change in testimony. At that point, the trial court was obligated to conduct a

Richardson10 hearing. See Smith v. State, 7 So. 3d 473, 505 (Fla. 2009); Scipio v.

State, 928 So. 2d 1138, 1146 (Fla. 2006). The State admitted that it was aware of

the change in Ruiz’s testimony but contended that it had no duty to disclose the

change to the defense because it was not material. In this Court, the State argues

that Ruiz’s change in testimony merely clarified a “crummy question” by the

defense at the deposition. I disagree.

The fact that the State was aware of this change before trial but failed to

disclose it, even though the deposition occurred over five years before trial, is

inexcusable. Additionally, the majority accepts without further discussion the

State’s argument that Ruiz’s new testimony at trial was a mere clarification.

10. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

- 38 -
However, this argument cannot survive the facts in the record. Defense counsel

prefaced her deposition questions by referring to “the day [the murder] happened.”

She called Ruiz’s attention to his schedule for that day, which bore the date

January 24, 2005, on its face. Asked if his route took him near the efficiency, Ruiz

referred to “that day specifically.” Thus, the transcript of the deposition clearly

shows that Ruiz was not confused as to either the defense question or his answer.

The trial court’s failure to conduct a full Richardson hearing, in which the

trial court must inquire as to whether the violations were “inadvertent or willful,”

“trivial or substantial,” and “most importantly, what effect, if any did it have upon

the ability of the defendant to properly prepare for trial” hinders this Court’s ability

to conduct a proper harmless error analysis. Richardson, 771 So. 2d at 775. As

the majority states, a discovery violation can be considered harmless only if the

appellate court can determine beyond a reasonable doubt that the defense was not

prejudiced by the violation. Majority op. at 11.

Prior to State v. Schopp, 653 So. 2d 1016 (Fla. 1995), a failure to conduct a

Richardson hearing was per se reversible. Id. at 1019-20. However, even with

Schopp, this Court adopted an exacting standard for failures to conduct a

Richardson hearing, which involves a consideration of whether there was

procedural prejudice to the defendant:

In determining whether a Richardson violation is harmless, the
appellate court must consider whether there is a reasonable possibility

- 39 -
that the discovery violation procedurally prejudiced the defense. As
used in this context, the defense is procedurally prejudiced if there is a
reasonable possibility that the defendant’s trial preparation or strategy
would have been materially different had the violation not occurred.
Trial preparation or strategy should be considered materially different
if it reasonably could have benefited the defendant. In making this
determination every conceivable course of action must be considered.
If the reviewing court finds that there is a reasonable possibility that
the discovery violation prejudiced the defense or if the record is
insufficient to determine that the defense was not materially affected,
the error must be considered harmful. In other words, only if the
appellate court can say beyond a reasonable doubt that the defense
was not procedurally prejudiced by the discovery violation can the
error be considered harmless.
Id. at 1020-21.

Because a full Richardson hearing was not conducted, the Court is left to

speculate as to the answers to these critical inquiries. The majority opinion states

that the State’s failure to inform the defense was not willful. But it is impossible to

reach that conclusion, because that is exactly the type of inquiry required in a

Richardson hearing, which was not conducted in this case.

The defense theory of the murder in this case centered upon focusing the

jury’s attention on Ruiz, the victim’s live-in paramour, as the prime suspect.

Ruiz’s testimony regarding his delivery route during the deposition buttressed this

theory by placing him near the scene of the crime around the time the crime was

likely committed. Thus, the change in testimony was material to the defense case,

and any knowledge in regard to how the defense strategy would have changed if

they had known about this “clarification” before trial would be pure speculation.

- 40 -
Further, the majority opinion’s reliance on State v. Knight, 76 So. 3d 879

(Fla. 2011), is unpersuasive. In Knight, this Court held that a Richardson hearing

was not required where the State ordered further DNA comparison testing without

giving any notice to the defense. Id. at 887-88. Ultimately, this Court held that

there was no discovery violation because the defense was actually in receipt of all

of the evidence, but merely “complained of having the evidence interpreted

differently by two experts.” Id. at 888. By contrast, in this case, the State

admittedly knew before trial that Ruiz was going to give testimony that directly

contradicted his earlier statements in the deposition and chose not to inform the

defense regarding this change. Thus, the State knowingly withheld a key piece of

evidence with respect to the defense theory of the crime.

Ruiz’s change in testimony did not turn him into an eyewitness to the crime,

but it did undermine the defense theory of the case by allowing him to deny he was

near the scene of the crime at the time of the victim’s murder. Although the

defense was able to impeach Ruiz on the stand with his prior contradictory

statement, that change in strategy occurred at the last minute while the witness was

testifying rather than through a reasoned decision made in advance of trial.

Accordingly, I would conclude that the State’s nondisclosure was material, and the

trial court’s failure to conduct a full Richardson hearing was not harmless beyond a

reasonable doubt.

- 41 -
Hearsay Testimony

Next, with respect to the improper hearsay statements that the trial court

allowed, I also respectfully disagree with the majority’s conclusion. The core

guarantee of the constitutional right to confront witnesses is that the government

cannot use the hearsay statements of nontestifying witnesses against a criminal

defendant at trial. See U.S. Const. amends. VI, XIV; art. I, §§ 9, 16, Fla. Const.;

Crawford v. Washington, 541 U.S. 36 (2004). Where testimony creates the clear

inference that a nontestifying witness furnished information, it is inferential

hearsay subject to the same rules. See, e.g., Keen v. State, 775 So. 2d 263, 272

(Fla. 2000).

In this case, the trial court permitted the officers who investigated the crime

to testify, over defense objection, as to their opinion regarding whether Ruiz

committed the crime. Their testimony was based largely upon information

Detective Chavary gathered during his interview with Ruiz—in other words, the

opinion testimony was based purely on hearsay. I cannot agree with the majority

opinion that this testimony was permissible. Majority op. at 14-15.

The lead officer, Sergeant McCoy, testified first, over repeated hearsay

objections by the defense. The trial court overruled most of the objections based

on the State’s arguments that the testimony fit into either the “present sense

impression” or “course of the investigation” exceptions to the rule against hearsay.

- 42 -
But, as the defense repeatedly pointed out at trial, there is no course-of the-

investigation exception. See Keen, 775 So. 2d at 274 (rejecting the argument that

similar testimony was admissible to “show a sequence of events”); State v. Baird,

572 So. 2d 904, 907 (Fla. 1990) (rejecting the argument that such testimony was

proper to prove a detective’s “motive for investigating [the defendant],” or to

“present a logical sequence of events”).

Arguing in support of a mistrial, defense counsel stated:

[W]e have heard a lot from this witness about what he learned, what
came to be known to him. And whatever he was told, all of that, has
been hearsay. We have been objecting. Some have been sustained, a
lot more overruled. And what I want to call to the Court’s attention,
that’s what the State is doing, with this witness. They are using this
witness, to bring in hearsay, from other detectives, about what
happened outside of his presence.

The defense further noted the fallacy of the State’s argument that once the

detective has personal knowledge of the information, it is no longer considered

hearsay:

The detective could come in and say, well, I learned the defendant
was guilty. I learned that a witness saw him do that.

In other words, the defense correctly explained that police officers cannot become

conduits for what others have observed or investigated.

Although the trial court denied the motion for mistrial, the trial court granted

the defense’s motion in limine that the “State will not bring out hearsay, through

the guise of what a detective will learn.” However, despite the motion being

- 43 -
granted during the direct examination, the State then utilized another tactic—

stating that the officer could testify based on “personal knowledge” without ever

exploring how Sergeant McCoy, who only participated in the investigation in a

supervisory capacity, gained the “personal knowledge.”

Specifically, the prosecutor asked McCoy over defense objection:

[MS. LEVINE]: Did you send Detective Chavary to interview
Alberto Ruiz?

A. Yes.

[MS. LEVINE]: Subsequent to that interview, was Alberto Ruiz
a suspect in this case?

MS. GEORGI: Objection. Calls for hearsay.

THE COURT: Overruled. You can answer, sir, if you have
personal knowledge.

THE WITNESS: No. He was not a suspect.

(Emphasis added.) Additionally, during Detective Gallagher’s testimony the

following exchange occurred:

[MS. LEVINE]: I would like to talk to you specifically about
Alberto Ruiz. Did you, sir, you, ever speak to him personally?

A. No, I did not.

[MS. LEVINE]: Who did you assign that to?

A. Detective Enrique [Chavary].

- 44 -
[MS. LEVINE]: At any time during your investigation after
speaking to Detective [Chavary], at any time was Roberto [sic]
Ruiz a suspect in this case?

MRS. GEORGI: Objection, calls for hearsay.

THE COURT: Overruled.

A. No.

[MS. LEVINE]: Did you, sir, you, ever drive the route of
Alberto Ruiz, the route that he provided to Detective
[Chavary]?

A. No, I did not.

[MS. LEVINE]: Why not?

A. He wasn’t a suspect.

MRS. GEORGI: Objection, calls for hearsay.

[MS. LEVINE]: Calls for present sense impression of what he
did.

THE COURT: Overruled. The question is did you.

THE WITNESS: No, I did not.

[MS. LEVINE]: Why not?

A. He was not a suspect to me.

[MS. LEVINE]: Okay. Did you ever order his cellular
telephone records?

A. No, I did not.

[MS. LEVINE]: Why not?

- 45 -
A. Again, he was not a suspect to me.

The judge denied the defense’s motion for mistrial, explaining: “But see, this

is the detective’s role in this case. Was this a person of interest that you were

investigating or how did they go about investigating.”

We cannot ignore that the officers’ belief that Ruiz was not a suspect was

based, in part, on hearsay statements from other witnesses and officers

investigating the case. In view of this fact, it was improper for the trial court to

allow this testimony. Indeed, as quoted above, the prosecutor specifically referred

to an implicit inadmissible hearsay discussion between Detectives Chavary and

Gallagher following Chavary’s interview with Ruiz as the basis for Gallagher’s

beliefs regarding Ruiz. Essentially, the trial court permitted the detectives to

testify as to their opinion in this case, which could have been based upon any

number of improper inferences drawn from evidence not presented to the jury that

Andres could not confront.

This Court’s recent opinion in Lebron v. State, 232 So. 3d 942 (Fla. 2017), is

instructive. In Lebron, the allegedly improper statement was made during the

opening statements. Specifically, the prosecutor stated: “The police continue

fielding investigative leads. And now they know that they are looking for two

individuals by the names of Jesus Roman and Joel Lebron.” Id. at 952.

Ultimately, this Court held in Lebron:

- 46 -
[T]here is no violation where a police officer testifies regarding steps
taken during an investigation without identifying anyone the police
spoke to or alluding to the conversations that took place. See Evans v.
State, 808 So. 2d 92, 103-04 (Fla. 2001). Additionally, this Court has
recognized that an officer can testify about the actions taken based on
a tip of information received without describing the tip, the
information, or its source. See State v. Baird, 572 So. 2d 904 (Fla.
1990).

Id.

By contrast, the officers here testified specifically that after Detective

Chavary’s interview with Ruiz, they no longer considered Ruiz to be a suspect in

the case. This testimony constitutes improper opinion testimony, rather than a

blanket statement of what the officers did in the case following the interview. The

issue in this case is not that the officers testified that they did not drive Ruiz’s milk

route. The problem, rather, is that after the officers testified as to what they did,

they offered their opinion that Ruiz was not a suspect in this case. Indeed, in the

question posed to the detectives, the State explicitly referenced “the information,

[and] its source.” Id. (citing Baird, 572 So. 2d 904).

This case is similar to Wilding v. State, 674 So. 2d 114 (Fla. 1996), receded

from on other grounds by Devoney v. State, 717 So. 2d 1 (Fla. 1998), where

“[d]uring direct examination of the detective, the prosecutor asked whether the

anonymous tip received by the detective gave the name [of the defendant.]” Id. at

118. “The detective was allowed, over objection, to testify that it did.” Id. “The

- 47 -
detective further testified that the department began its investigation of the [the

defendant] from the tip . . . .” Id. Ultimately, the Court concluded:

While it might have been permissible to allow the detective to
testify that police began the investigation because of a “tip” or
“information received,” this testimony clearly went beyond that
authorized in State v. Baird, 572 So. 2d 904 (Fla. 1990). . . .
....
In this case, even though the detective never specifically
repeated what the informant told him, the clear inference to be drawn
from the testimony was that the informant had implicated [the
defendant] in the murder and the information received was reliable
because it had been verified by police who talked to [the defendant’s]
family and friends.

Id. at 118-19.

This case is also similar to Norton v. State, 709 So. 2d 87 (Fla. 1997), where

the Court explained:

Although we find no error with the detective testifying that he went to
the address given to the police by appellant and that there was no tire
store at that location, the trial court erred in allowing the detective to
testify that, upon a subsequent search of stores in the vicinity, he
could not find anyone who sold tires to defendant. The detective’s
conclusion is predicated on information he secured from someone
else, and, therefore, constitutes hearsay to which no exception was
offered. See, e.g., Trotman v. State, 652 So. 2d 506, 506 (Fla. 3d
DCA 1995) (reversing conviction where police officer offered hearsay
testimony as to what non-testifying, unidentified witness had told him
about defendant’s involvement in crime); Bell v. State, 595 So. 2d
232, 234 (Fla. 3d DCA 1992) (finding error where police officer
testified regarding statements by non-testifying witness); Burney v.
State, 579 So. 2d 746 (Fla. 4th DCA 1991) (holding that testimony as
to statements by unidentified witnesses implicating defendant was
inadmissable hearsay when offered to show the logical sequence of
events.)

- 48 -
Id. at 95. Thus, the issue in Wilding and Norton, as in this case, was that the

hearsay evidence presented led to the inescapable inference that the information in

the interview between Ruiz and Detective Chavary led investigators to conclude

that they could exclude Ruiz as a suspect and focus only on Andres.

This Court has previously held that great caution should be used when it is

known that law enforcement officers will be testifying in a case because it is easy

for jurors to give undue weight to law enforcement opinions, especially when that

opinion is in regard to who was ultimately responsible for the crime. See Smith v.

State, 699 So. 2d 629, 636 (Fla. 1997) (“When it is anticipated that law

enforcement officers may testify in a case, it is proper to ask prospective jurors

about their assumptions concerning the testimony of law enforcement officers.”)

Additionally, as this Court has previously explained:

“[E]rror in admitting improper testimony may be exacerbated where
the testimony comes from a police officer.” Martinez v. State, 761 So.
2d 1074, 1080 (Fla. 2000). “When a police officer, who is generally
regarded by the jury as disinterested and objective and therefore
highly credible, is the corroborating witness, the danger of improperly
influencing the jury becomes particularly grave.” Id. (quoting
Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992)). “There is the
danger that jurors will defer to what they perceive to be an officer’s
special training and access to background information not presented
during trial.” Charles, 79 So. 3d at 235.

Evans v. State, 177 So. 3d 1219, 1230 (Fla. 2015). Moreover, this Court has

previously held: “[T]here is an increased danger of prejudice when the

investigating officer is allowed to express his or her opinion about the defendant’s

- 49 -
guilt. In this situation, an opinion about the ultimate issue of guilt could convey

the impression that evidence not presented to the jury, but known to the

investigating officer, supports the charges against the defendant.” Martinez v.

State, 761 So. 2d 1074, 1080 (Fla. 2000).

The officers in this case were permitted to testify as to their opinion “about

the ultimate issue of guilt.” It should not matter that the testimony was in regard to

the exclusion of a person of interest in the case, rather than to the guilt of the

defendant. The prejudicial impact on the defense is the same, if not doubly so.

Not only did the testimony serve to negate the defense theory, it also tended to

show that Andres more than likely committed the crime.

The improper hearsay testimony, which took the form of the officer’s

opinion regarding Ruiz’s innocence, and implicitly, Andres’ guilt, undoubtedly

carried great weight in the minds of the jurors and only served to further

undermine the defense theory that Ruiz could have murdered the victim. Because

Ruiz also testified in the State’s case, the testimony by these detectives also

improperly bolstered Ruiz’s testimony. And, of course, combined with Ruiz’s

changed testimony that his milk route on the day of the murder did not take him

close to the efficiency, the defense was unfairly and improperly disadvantaged.

Thus, the officers’ testimony went far beyond the actions they undertook when

investigating the case, as asserted by the State, and consequently, beyond what this

- 50 -
Court has previously allowed. Accordingly, I would conclude that the trial court

erred in allowing the officers’ improper opinion testimony regarding Ruiz, and

such error should be considered in a cumulative error analysis.

Limitation of Cross-Examination

Next, the trial court improperly limited the defense’s cross-examination of

Jose Perez. As the majority notes, Perez testified on direct examination for the

State that Andres never returned to Perez’s home after the fire. Majority op. at 16-

17. On cross-examination, the defense attempted to inquire as to a particular

reason why Andres never returned to the home, but the trial court sustained the

State’s objection, concluding that such information was outside the scope of cross-

examination, which was narrowly limited by the State’s decision to ask only

whether Perez had seen Andres again. Majority op. at 17. In fact, Perez had told

Andres never to return to the home.

I agree that trial courts have broad discretion to impose reasonable

limitations on cross-examination. However, I would conclude that the limitation

imposed in this case was an abuse of discretion. If the State introduced the fact

that Andres never returned to the construction site to complete work, then it was

clearly within the scope of the cross-examination of the defense to inquire as to

why he did not return. The State used this information to bolster the implication

that Andres’ reason for not returning was a guilty conscience. The trial court erred

- 51 -
by not giving the defense an opportunity to counter this implication with the plain

truth—that Andres was told by the homeowner not to return.

Improper Closing Argument

Next, the prosecutor made several improper remarks during closing

arguments, which the majority discounts. First, the prosecutor improperly made

comments shifting the burden of proof from the prosecutor to the defense.

Specifically, the prosecutor argued there was “no evidence that this defendant is

not guilty,” warned that the defense was trying to distract them, said “don’t get

fooled,” referred to the defense argument as “speculation and guessing” and “a

fairytale,” and characterized defense counsel as “mean” and “insulting.” Contrary

to the majority’s assertions, this is exactly the type of overzealous advocacy that

this Court held was improper in Cardona v. State, 185 So. 3d 514 (Fla. 2016).

Granting the defendant a new trial in Cardona, this Court cautioned that conduct

where a prosecutor “exceed[s] the bounds of proper conduct and professionalism

and provide[s] a ‘textbook’ example of overzealous advocacy.’ ” Id. at 516

(alterations in original) (quoting Gore v. State, 719 So. 2d 1197, 1202 (Fla. 1998)).

The prosecutor’s conduct throughout closing was needlessly overzealous

and improperly denigrated the defense’s theory of the case and the defense

attorneys. Such conduct should not be implicitly permitted by stating that “the

State’s actions and comments, though unprofessional and questionable, did not rise

- 52 -
to the same level of unprofessionalism exhibited in Cardona.” Majority op. at 30.

Instead, where prosecutors intentionally set out to confuse the jury regarding the

burden of proof and disparage the defense case and attorneys, I would conclude

that such conduct should weigh heavily in favor of a new trial in a cumulative error

analysis.

Cumulative Error

Finally, turning to a cumulative error analysis, I would conclude that the

totality of the errors in this case, which served to continually undermine the

defense theory and trial preparations, warrants a new trial. As to cumulative error

this Court has stated:

Having concluded that multiple errors occurred in this case, we
proceed to consider the cumulative effect of those errors to determine
whether those errors are harmless. See McDuffie [v. State], 970 So. 2d
[312,] 328 [(Fla. 2007)] (conducting a cumulative harmless error
analysis where multiple preserved errors occurred). Harmless error
analysis places the burden upon the State, as beneficiary of the errors,
to prove there is “no reasonable possibility that the error contributed
to” the defendant’s conviction. [State v. ]DiGuilio, 491 So. 2d [1129,]
1138 [(Fla. 1986)]. As we have repeatedly stressed, the harmless
error test “is not a sufficiency-of-the-evidence, a correct result, a not
clearly wrong, a substantial evidence, a more probable than not, a
clear and convincing, or even an overwhelming evidence test” but the
“focus is on the effect of the error on the trier-of-fact.” Id. at 1139.

Evans, 177 So. 3d at 1238. Here, there are four errors, all of which were properly

preserved by the defense, that should be considered in a cumulative error

analysis—(1) the State’s failure to disclose Ruiz’s change in testimony with regard

- 53 -
to his alibi, (2) the trial court’s error in allowing the State to repeatedly introduce

the hearsay testimony of Detective Gallagher and Sergeant McCoy as to their

belief that Ruiz was not a suspect in this case, (3) the trial court’s error in not

allowing the defense to inquire on cross-examination why Andres did not return to

the Perez home, and (4) the improper comments made by the State during closing

arguments.

Taken together, these preserved errors cannot be considered harmless

beyond a reasonable doubt. Allowing a key witness for both the State and defense

to, unbeknownst to the defense, change his testimony on the stand, thus taking

away a key component of the defense theory of the crime, was highly prejudicial.

Moreover, the detectives in the case were repeatedly allowed to testify, based on

unreliable hearsay evidence, that they did not consider the only other identified

potential perpetrator of the crime, Ruiz, a suspect in the case—testimony that was

also highly prejudicial to the defense case. Coupling these errors with the errors in

not allowing the defense to explain to the jury why Andres never returned to the

efficiency following the crime, and the comments made by the State during closing

arguments, compel the conclusion that Andres is entitled to a new trial. Though

each of these errors is significant in its own right, when considered cumulatively, it

is impossible for the State to prove beyond a reasonable doubt that the cumulative

effect of these errors did not contribute to Andres’ conviction in this case.

- 54 -
CONCLUSION

In my view the defense team was exemplary in appropriately objecting and

pointing out their areas of concern to the trial court. Indeed, a thorough review of

the record reflects that not a single instance of potential error was left without

objection by the defense. The objected-to errors undercut the defense theory at

every turn. Accordingly, while I agree with the majority that Andres is entitled to

Hurst relief, I would vacate Andres’ convictions and remand for a new trial.

An Appeal from the Circuit Court in and for Miami-Dade County,
Dava J. Tunis, Judge - Case No. 132005CF0126480001XX

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa R. Shaw,
Assistant Attorney General, Miami, Florida,

for Appellee

- 55 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4316045. Public record. Not legal advice.