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Lebron v. State

Supreme Court of Florida

December 21, 2017

JOEL LEBRON, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

         An Appeal from the Circuit Court in and for Dade County, William Lewis Thomas, Judge - Case No. 132002CF012509A000XX

          Eugene Zenobi, Regional Counsel, Philip L. Reizenstein, Assistant Regional Counsel, and Roy D. Wasson, Office of Criminal Conflict and Civil Regional Counsel, Third District, Miami, Florida, for Appellant

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee

          PER CURIAM.

         As explained below, we affirm Joel Lebron's convictions but vacate his death sentence and remand for a new penalty phase.[1]

         BACKGROUND

         On Saturday, April 27, 2002, Ana Maria Angel and Nelson Portobanco, both high school students, decided to go for a walk on the beach in Miami Beach after a dinner date. After walking along the beach for a while, the couple decided to return to their vehicle. By this time, Lebron and his four codefendants (Cesar Mena, Victor Caraballo, Hector Caraballo, and Jesus Roman) had arrived in an extended cab truck and parked. As Angel and Portobanco left the beach, they were approached by Lebron (who identified himself as Diablo to the couple) and another codefendant and forced at gunpoint to get into the truck.

         Once in the truck, Angel and Portobanco were forced to turn over their property including wallets, PIN numbers, cell phones, and jewelry. Lebron and the codefendants used Angel's ATM card to try to withdraw money from a nearby cash machine. Following this attempt, Portobanco's cell phone was used to call codefendant Hector Caraballo's number in the Orlando area.

         During the abduction, Portobanco was ordered to kiss Angel, and when he refused, the men punched him in the head until he did so. Then, the men demanded and received Angel's underwear and forced Portobanco onto the floorboard. Thereafter, Lebron and other codefendants took turns orally, vaginally, and anally raping Angel as the driver proceeded northbound on I-95.

         Eventually, the driver pulled over to the side of I-95, and Lebron and one of the codefendants ordered Portobanco out of the vehicle. Portobanco was walked over to the side of the highway near the barrier wall, where he was then stabbed repeatedly in the face, neck, and back. He was also kicked repeatedly. Portobanco laid motionless on the ground and pretended to be dead until the stabbings and beatings stopped. Lebron and the codefendant went back to the truck, leaving Portobanco on the side of the road. Once Lebron and the codefendants drove away, Portobanco was able to walk back to the roadway and stop a passing motorist who reported the crime.

         Lebron and his codefendants continued to drive north with Angel in the truck until they reached Palm Beach County, where they once again pulled over to the side of the road. Lebron and another codefendant took Angel out of the vehicle and walked her to the side of a roadway behind a wall concealed from view. Angel was forced to kneel down, where Lebron shot her in the head.

         Lebron and his codefendants then drove back to Orlando, where the group stopped so some of the members could buy crack cocaine before dropping two of the codefendants off at an apartment complex.

         In the early morning hours of Sunday, April 28, 2002, law enforcement officers interviewed Portobanco in the hospital and learned that the number dialed on Portobanco's cell phone was linked to codefendant Hector Caraballo's apartment in Orlando. Officers, along with FBI agents, went to the leasing office of the apartment looking for Hector. The leasing agent informed them that she did not know of a Hector Caraballo but that Victor Caraballo, another one of the codefendants, had leased an apartment there and moved out while being evicted. The leasing agent gave officers permission to search the apartment and provided them with the keys. Once inside the apartment, the officers found Victor as well as Angel's ATM card, driver's license, purse, cell phone, and wallet. Portobanco's wallet was also discovered in the apartment. In searching the dumpster near the apartment, the police located Angel's shoes.

         Thereafter, two law enforcement officers proceeded to a different apartment complex to look for the truck and a red Honda associated with the crimes. There the police encountered Cesar Mena, who was taken to Florida Department of Law Enforcement (FDLE) headquarters.

         During this time, officers identified Jesus Roman and Lebron as additional suspects. Officers located Roman and Lebron at another apartment complex. Lebron was standing in a breezeway with a duffle bag and shopping bags next to him, which were impounded. In one of the bags, a pair of tan boots that appeared to have blood on them was found. These boots belonged to Lebron.

         Lebron was arrested on Monday, April 29, 2002, at around 1 a.m. He was not Mirandized when arrested, but officers collected his clothing and glasses to preserve trace evidence. Lebron was then clothed in a gown, handcuffed, and placed in an unmarked vehicle. An officer drove Lebron to the FDLE Regional Center in Orlando.

         Once at the FDLE Regional Center, Lebron was placed unhandcuffed in a room with law enforcement officers while other officers went to locate a tape recorder for the interview. However, before Miranda warnings were administered, Lebron admitted that he shot Angel and stabbed Portobanco. Then, after Miranda warnings were administered and after Lebron waived his Miranda rights, Lebron gave a detailed confession to the murder and sexual assault of Angel and the attempted murder of Portobanco.

         Angel's body was found on the shoulder of I-95 behind a thicket of palm trees next to a retaining wall. Her hands were clasped together with their fingers interlaced. She was barefoot and had a number of abrasions on her face and an abrasion on her right leg, which the medical examiner testified were injuries that occurred close to the time of her death. Additionally, officers returned to Mena's apartment, obtained consent, and searched the apartment. Officers located two knives in a closet at the apartment. Officers also found a gun, which a ballistics expert testified was the weapon that killed Angel.

         During the guilt phase, law enforcement officers testified regarding Lebron's post-Miranda confession, and the jury heard Portobanco's testimony. Furthermore, a fingerprint examiner testified that there was a fingerprint matching Lebron's found on the mirror of the truck. A forensic biologist and DNA analyst testified that he conducted serological testing on the truck's back seat cover, the boots, and the vaginal and anal swabs from Angel's rape kit and found semen on the seat cover and swabs and blood on the boots. DNA testing revealed a mixture of DNA on the seat cover that was consistent with the DNA of Angel, Lebron, and the Caraballos, DNA consistent with Lebron on the vaginal swab and anal swab, and DNA consistent with Portobanco on the boots.

         After the guilt phase, the jury found Lebron guilty of (1) first-degree murder of Ana Angel; (2) attempted first-degree murder of Nelson Portobanco; (3) armed kidnapping of Ana Angel; (4) armed kidnapping of Nelson Portobanco; (5) armed robbery of Ana Angel; (6) armed robbery of Nelson Portobanco; and (7) armed sexual battery of Ana Angel. And after the penalty phase, the jury voted 9 to 3 to recommend a sentence of death. The trial judge followed the jury's recommendation, finding 6 aggravators and listing numerous mitigating facts.

         GUILT PHASE ISSUES ON APPEAL

         Before this Court, Lebron argues: (1) his post-Miranda[2] statement was inadmissible; (2) the trial court erred in denying his motion for mistrial based on Agent Hernandez's statement during testimony; (3) the trial court erred in denying his motion for mistrial based on the State's comment during opening statements; (4) the trial court erred in denying his motion for mistrial based on the presence of the victim's mother in the courtroom; (5) the trial court erred in excluding quantitative electroence-phalography (QEEG) evidence under Frye;[3] (6) the trial court erroneously instructed the jury in such a way as to deprive it of its pardon power; and (7) the trial court erred in denying his motion for mistrial based on the State's demonstration with the handgun during its closing argument. None of these issues warrants relief. [4] We also conclude that the evidence is sufficient to support Lebron's first-degree murder conviction.

         1. Post-Miranda Statement

         First, Lebron argues that his pre-Miranda statement rendered his post-Miranda statement inadmissible and that he did not voluntarily waive his Miranda rights. However, because officers did not engage in a deliberate two-step interrogation strategy calculated to undermine the Miranda warnings and because Lebron was fully informed of and waived his rights, we disagree.

         As the lower court explained,

[Lebron] was located by law enforcement officers in Orlando between 1:00 and 2:00 a.m. on April 29, 2002. [Lebron] was transported to the Orlando headquarters of the Florida Department of Law Enforcement ("FDLE") prior to 2:40 a.m.
Upon arrival at the FDLE headquarters, [Lebron] was seated in the FDLE cafeteria with an FDLE agent. The agent was aware that no Miranda warnings had yet been administered. Other agents were looking for a tape recorder so that [Lebron's] interview could be recorded if [Lebron] agreed to speak with them.
The agent initially said nothing to [Lebron]. After several minutes, [Lebron's] demeanor changed and he began to cry. The agent said, "I hope you know what kind of trouble you are in." [Lebron] replied, "Yes, I know. I killed her." He said that he told her to get down on her knees and that the gun did not go off until the third time he pulled the trigger. After [Lebron] said this, the agent left the room to report this information to other agents because up until that moment, the law enforcement agencies had hoped that Ms. Angel was still alive. [Lebron] said nothing further at that time and was not asked any questions.
At 3:06 a.m. the officers had located a tape recorder and began administration of Miranda rights. [Lebron] signed the waiver form at 3:15 a.m. [Lebron] gave a detailed confession which included the abduction of both victims, the theft of the victims' jewelry, credit cards, bank cards, and property, the sexual assault and murder of Ms. Angel, and the attempted murder of Mr. Portobanco.

State v. Lebron, 979 So.2d 1093, 1094 (Fla. 3d DCA 2008).

         "Both the United States and Florida Constitutions provide that persons shall not be 'compelled' to be witnesses against themselves in any criminal matter." Ross v. State, 45 So.3d 403, 412 (Fla. 2010). "To protect the right against self- incrimination, the [United States] Supreme Court required that any individual held for interrogation must be clearly informed as to his or her rights, including the 'right to remain silent, that any statement he does make may be used as evidence against him, and . . . [the] right to the presence of an attorney, either retained or appointed.' " Id. at 413 (quoting Miranda, 384 U.S. at 444). "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444.

          In Oregon v. Elstad, 470 U.S. 298 (1985), the United States Supreme Court addressed a defendant's statement that was made after he waived his Miranda rights but where the defendant had previously made an incriminating statement before the administration of Miranda warnings. The Court held that the post-warning statement was admissible, stating:

[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.

Id. at 314; see also Davis v. State, 698 So.2d 1182, 1189 (Fla. 1997) ("Shortly after confessing in his holding cell, Davis gave a taped statement in which he voluntarily gave the same information contained in his prior statement. . . . This [second] statement was clearly admissible because Davis was fully informed of (and waived) his Miranda rights before the start of the taping session." (citing Elstad, 470 U.S. 298)); Ramirez v. State, 739 So.2d 568, 574-76 (Fla. 1999) (applying Elstad and explaining that whether a second, postwarning statement was voluntary requires a review of the totality of the circumstances).

         Then, in Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme Court held that a second, warned statement was inadmissible where law enforcement officers intentionally and thoroughly questioned the defendant without administering Miranda in order to elicit an unwarned statement that was then used to elicit the second, warned statement. The plurality opinion in Seibert, 542 U.S. at 611-12, stated the following:

The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?

         The plurality listed the following "relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object:"

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.

Id. at 615. Justice Kennedy, who provided the necessary fifth vote in Seibert, explained the following in his concurrence:

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.

Seibert, 542 U.S at 622 (Kennedy, J, concurring in the judgment) (citations omitted); see also Ross, 45 So.3d at 424 (considering whether law enforcement employed a deliberate two-step interrogation strategy, "whether the police minimized and downplayed the significance of the Miranda rights once they were given, " as well as "the circumstances surrounding both the warned and unwarned statements including 'the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second [interrogations], the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first' " when determining the admissibility of a second, postwarning statement (quoting Seibert, 542 U.S. at 615)).

         In this case, the evidence demonstrates that law enforcement did not employ a deliberate two-step interrogation strategy calculated to undermine the effectiveness of Miranda warnings. There was only a single statement of "I hope you know what kind of trouble you are in" by the agent with Lebron responding that he had shot Angel and stabbed Portobanco. There was no thorough prewarning interrogation like the one described in Seibert that was then used to elicit a repeated confession after Miranda was administered. Cf. Seibert, 542 U.S. at 605, 616 (explaining that the defendant in Seibert was questioned for 30 to 40 minutes before Miranda was administered and that the pre-Miranda questioning "was systematic, exhaustive and managed with psychological skill[, and when] the police were finished there was little, if anything, of incriminating potential left unsaid" and that the post-Miranda questioning "was fostered by references back to the confession already given"); see also Rhode Island v. Innis, 446 U.S. 291, 300 (1980) ("[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. 'Interrogation, ' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.").

         Once the agent informed others that Angel was in fact deceased, Miranda rights were administered, and Lebron knowingly, intelligently, and voluntarily waived his rights. Specifically, Agent Hidalgo presented Lebron with a Miranda waiver form and read each of the rights to Lebron. Lebron indicated to Agent Hidalgo that he understood his rights. Lebron then agreed to speak with the officers without an attorney, and Lebron signed the waiver form. Officers also testified that Lebron did not appear intoxicated and that he appeared to understand what was occurring. No threats or promises were made.

          Moreover, while Lebron's prewarning statement indicated that he had killed Angel and attempted to kill Portobanco, it did not include the details of his role in the kidnapping, robbery, and sexual battery that he included in his postwarning statement. There is no evidence that law enforcement minimized the significance of the Miranda warnings once they were given. The first statement was not used by law enforcement in eliciting the postwarning statement. Law enforcement did not refer to the first statement when conducting the post-Miranda interview. Instead, law enforcement began questioning Lebron about what had occurred beginning with when Lebron first met with the codefendants. Also, Lebron's initial confession in response to the agent's single statement was made at approximately 2:42 a.m., and the officers did not question him until after he executed a written waiver at 3:15 a.m.

         Accordingly, because officers did not engage in a deliberate two-step interrogation strategy and because Lebron knowingly, intelligently, and voluntarily waived his Miranda rights before making his second statement, his postwarning statement was admissible.

         2. Agent Hernandez's Testimony

         Next, Lebron argues that the trial court erred in denying his motion for mistrial based on Agent Hernandez's testimony. An order granting a mistrial is required "only when the error upon which it rests is so prejudicial as to vitiate the entire trial." Smith v. State, 866 So.2d 51, 58 (Fla. 2004). In reviewing a trial court's ruling on a motion for mistrial, this Court employs an abuse-of-discretion standard of review. Id. at 58-59.

         Lebron argues that he was unfairly prejudiced by Agent Hernandez's testimony that he was able to recall Lebron's confession because this was the worst case he had ever seen. However, the actual testimony during trial was the following:

In my twenty-five years as a law enforcement officer, I never heard a confession like that when he talked to - to the agent about the - how he and the other rape and did whatever.

         This testimony was provided during the State's case in chief following defense counsel's statement in opening argument that he intended to challenge the reliability of testimony regarding Lebron's confession after it was learned by the officers that it had not been recorded.

         This Court has long recognized that a party presenting a witness may present evidence on direct examination as "anticipatory rehabilitation." Lawhorne v. State, 500 So.2d 519, 520 (Fla. 1986); Bell v. State, 491 So.2d 537, 538 (Fla. 1986). Moreover, when a prior law enforcement witness was under cross-examination earlier in the trial, defense counsel asked extensive questions regarding the detective's ability to remember the details of Lebron's confession. When the trial court indicated that it allowed Agent Hernandez's testimony because it had anticipated defense counsel's cross-examination on the issue, counsel did not suggest that it did not intend to pursue the line of questioning.

         Thus, the trial court did not abuse its discretion in allowing Agent Hernandez to testify as to why he was able to remember the confession.

         3. Opening Argument

         Lebron claims that the trial court erred in denying his motion for mistrial based on the State's comment during opening argument. "This Court reviews a trial court's ruling on a motion for mistrial under an abuse-of-discretion standard of review." Smith, 866 So.2d at 58-59.

         During its opening statement, the State discussed the facts of the crime, how the investigation of the use of the cell phones stolen from the victims led them to Hector's apartment, and how that led to the discovery of Victor and the victims' property in and around the apartment. The prosecutor then stated:

         So at that point, the police had one down, but they had four more to go.

Now, as this investigation was unfolding, the police are fielding information from a lot of different sources. And one investigative lead that they got took them to another apartment complex. . . . And Special Agent King, the one that had busted in through Victor Caraballo's evicted apartment, goes ...

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