FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Donald G. Jacobsen,
M. Weinberg of John M. Weinberg, P.A., Fort Lauderdale, for
Jo Bondi, Attorney General, Tallahassee, and Darla Dooley,
Assistant Attorney General, Tampa, for Appellee.
Baez appeals his conviction and sentence for first-degree
murder. Because the court erred in excluding portions of
jailhouse informant Rico Cielo's testimony and we cannot
say that the error was harmless, we reverse and remand for a
was found guilty of the murder of Jose Santos, also known as
"Sugarbaby." Santos disappeared on the night of
November 6, 2012. At the time, he had been staying with his
girlfriend, Barbara Pandolfo, and her family-which included
her brother, Charles Pandolfo. Santos left the residence
after getting into an argument with Barbara, and he never
returned. Several days later, on November 11, Santos'
body was discovered buried in a nearby orange grove. He had
been shot in the back of the head. The murder weapon was
never found. The debris in the grove was checked for
fingerprints, but none were found.
State's theory of the case was that Baez had committed
the murder with Charles Pandolfo's help. The
defense's theory, on the other hand, was that Charles had
committed the murder alone and met up with Baez afterwards to
go on a drive and smoke marijuana. Much evidence was
presented that could have been interpreted to support either
of these theories. A surveillance video of the entrance of
the neighborhood from the night of the crime was introduced.
The video showed someone-identified by Santos' cousins as
Charles Pandolfo-wearing a hoodie, holding a bag, and walking
around the neighborhood shortly after 2:00 a.m. on November
7. The video then showed what appeared to be Charles' car
make a U-turn in front of the gate and after that what
appeared to be Baez's car driving toward the Pandolfo
residence. Santos' cousins were particularly concerned by
the surveillance video because members of the Pandolfo family
repeatedly told them that they had all been in bed by 1:00
a.m. that night.
cousins testified that they searched the orange grove with
Barbara and Charles Pandolfo, looking for the victim. They
indicated that Charles' behavior was suspicious because
he did not appear to be seriously looking and he shooed them
away from a specific area. According to Santos' cousins,
the Pandolfos did not approve of the relationship between
Santos and Barbara. The cousins described the relationship as
toxic and violent.
neighbor of the Pandolfos testified that he was outside
smoking a cigarette between 2:00 and 3:00 a.m. on November 7
when he saw Santos and another man walking down the street.
They walked between two houses toward the orange grove. The
neighbor-who did not know Charles Pandolfo but was familiar
with Baez from around the neighborhood-did not recognize the
man walking with Santos but believed the man was wearing a
hoodie. At about 10:30 a.m. the next morning, the neighbor
walked through the orange grove on his way to work. He
noticed a big patch of fresh dirt marked like a grave with a
wooden cross. He thought a dog may have been buried there.
The patch of dirt had not been there the day before.
neighbor testified that she saw Charles Pandolfo physically
attack Santos in September 2012, approximately two months
before the murder. Santos had walked to the neighbor's
house from the Pandolfo residence. The Pandolfos suddenly
pulled up in a car. Charles ran at Santos, attacking him and
stabbing him with a screwdriver. Barbara held Santos to the
ground, and Charles was on top of him. When the neighbor
tried to break up the fight, Charles and Barbara's mother
pulled her back by the hair.
sister testified that on the night of the murder she was
hanging out with Baez at his apartment. Between 12:00 a.m.
and 1:00 a.m., Charles-who was a friend of hers-began texting
her that he was at a breaking point, that he felt like he was
going crazy, and that he was involved in a situation he could
not control. She later became aware that Baez was on the
phone with Charles. Baez appeared a little bothered, but it
was nothing out of the ordinary. She believed his change in
demeanor may have been because he and Charles had previously
had a falling out. After they hung up, she texted Charles,
telling him not to do anything stupid. She was concerned
because she knew that Charles and Santos had at one point
gotten into a physical fight; however, she never suspected
that Charles would commit murder. At around 2:00 a.m., Baez
drove his sister home.
sister also testified that her brother sold marijuana with
Wilfredo Diaz and Mark Rodriguez. Baez would often take
Charles Pandolfo on "J-rides"-a term for driving
around and smoking marijuana. Similarly, Mark Rodriguez
testified that he, Baez, and Diaz had formed a business
partnership to sell marijuana. They had a meeting after
Santos went missing and resolved to stay away from the
Pandolfos' neighborhood because of the increased police
presence. None of the partners made any kind of admission
that they were involved in Santos' disappearance-they
decided to stay away from the area only because they were
involved in the sale of illegal drugs.
Baez was arrested, he called Rodriguez from jail and asked
him to "clean up." According to Rodriguez, this was
a request for him to take care of the group's marijuana
plants and business dealings. Immediately after Baez made
this request, Rodriguez and Diaz went to their marijuana
patch and "cleaned up." Baez contacted ...