PABLO IBAR v. sTATE
03:19:2006
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PABLO IBAR
vs.
STATE
Supreme Court of Florida
____________
No.
SC00-2043
____________
PABLO IBAR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[March
9, 2006]
PER CURIAM.
Pablo
Ibar appeals his three convictions for first-degree
murder and his three sentences of death.?
We have jurisdiction.? See
Art. V, ? 3(b)(1), Fla. Const.? For the
reasons expressed below, we affirm the convictions and the sentences.
FACTS AND PROCEDURAL HISTORY
On
August 25, 1994, Pablo Ibar and Seth Penalver were charged with three counts of
first-degree murder, one count of burglary,
one count of robbery, and one count of
attempted robbery. title="">[1]
together.? The first jury trial ended
with a hung jury.? Ibar and Penalver
were eventually tried separately.? Both
Ibar and Penalver were ultimately convicted and sentenced to death.
On
Sunday, June 26, 1994, a Palm Beach County police officer discovered
twelve miles south of South Bay.? The
car was registered to Casmir Sucharski, href="#_ftn2" name="_ftnref2" title="">
owner of a nightclub called Casey?s Nickelodeon.? The officer who discovered the car notified the Miramar Police
Department.? A Miramar police officer
went to Sucharski?s home to tell him that his car had been found.
no answer.? He stuck his card in the
door and left.
The
next morning, Monday, June 27, 1994, Marie Rogers? mother reported her missing
to the Broward County Sheriff?s Department.?
Rogers had gone to Casey?s Nickelodeon on Saturday, June 25, 1994, with
her friend, Sharon Anderson, and did not return home.? Deputy Christopher Schaub went to Casey?s Nickelodeon and learned
that Sucharski left the club early Sunday morning with Rogers and
Anderson.? Schaub then went to Sucharski?s
residence.? Anderson?s car was in the
driveway but no one answered the door.?
Schaub found a Miramar Police Department business card in the door and a
blue T-shirt on the porch.? He
The
police identified the individuals found in the residence as Sucharski, Rogers,
and Anderson.? All three died of gunshot
wounds.? Because Sucharski had recently
installed a video surveillance camera in his home, there was a videotape of the
actual murders.? The tape revealed that
on Sunday, June 26, 1994, at 7:18 a.m., two men entered through the back
sliding door of Sucharski?s? home.
had something covering his face, but he eventually removed it.
Penalver, wore a cap and sunglasses, which were never removed, and carried a
firearm.? The videotape showed that one
of the intruders had a Tec-9 semiautomatic handgun with him when he entered the
home.? The other intruder displayed a
handgun only after he went into another room and left the camera?s view.
Penalver hit Sucharski with a Tec-9 in the face, knocked him to the floor, and
beat him on the neck, face, and body.? This
attack on Sucharski lasted for nearly twenty-two minutes.
Sucharski, Rogers, and Anderson in the back of the head.
shot Anderson and Sucharski in the back.
During
this time, the intruders searched Sucharski?s home.? They rummaged through the home and entered the bedrooms and the
garage.? Sucharski was searched and his
boots removed.? Sucharski struggled and
was repeatedly hit by both intruders.?
The intruders were seen putting things in their pockets.
kept ten to twenty thousand dollars in cash, carried a gun, and owned a Cartier
watch.? The watch was not found and
Sucharski?s gun holster was empty.???
Police
took frames from the videotape and produced a flyer that was sent to law
enforcement agencies.? Three weeks after
the murders, the Miramar police received a call from the
them that they had a man in custody on a separate and unrelated charge who
resembled the photo on the flyer.? The
man in custody at the Metro-Dade Police Department was Pablo Ibar.
investigators.? He told police he lived
with his mother, and that on the night of the murders he had been out with his
girlfriend, whom he called both Latasha and Natasha.
Ibar
actually lived with several friends in a rented home on Lee Street in
Hollywood, Florida.? One of his
roommates was Jean Klimeczko.? Klimeczko
initially identified Ibar and Penalver as the men on the videotape.
morning of the murders, Ibar and Penalver rushed into the Lee Street home,
grabbed a Tec-9 that was kept at the house, and left.? At the second trial, however, Klimeczko had no memory of his
earlier statements.? Other witnesses who
had given earlier statements to police that the men in the photo looked like
Ibar and Penalver also denied making identifications.
The jury found Ibar guilty on
each charge and, by a vote of nine to three,?
recommended a sentence of death for the murder of each victim.
aggravating factors:? (1) Ibar was
previously convicted of another felony involving the use or threat of violence
to the person; (2) the capital felony was committed while Ibar was engaged in
the commission of a robbery or burglary; (3) the capital felony was committed
for the purposes of avoiding or preventing lawful arrest; (4) the capital
felony was especially heinous, atrocious, or cruel; and (5) the capital felony
was committed in a cold, calculated, and premeditated manner without any pretense
of moral or legal justification.
The trial court found two
statutory mitigating factors:? (1) Ibar
had no significant history of prior criminal activity (given medium weight); and
(2) Ibar?s age at the time of the crime was twenty-two (given minimal weight).
mitigating factors:? (1) Ibar was a good
and respectful young adult; was a good, obedient and caring child; committed
good deeds and had good characteristics; had a loving relationship with his
mother; is a caring person (considered collectively and given medium weight);
(2) Ibar is a good worker (given minimal weight); (3) Ibar can be rehabilitated
in prison, is unlikely to endanger other prison inmates, and would make a
peaceful adjustment to prison life (given very little weight); (4) Ibar was a
good friend (given minimal weight); (5) Ibar exhibited good courtroom behavior
and a good attitude (given minimal weight); (6) Ibar is religious (given minimal
weight); (7) Ibar?s family and friends care for and love him and he married his
fiancé ·hile in jail (given minimal weight); (8) Ibar comes from a good family
(given minimal weight); and (9) Ibar expressed remorse (given minimal weight).
The
trial court accepted the jury?s recommendation and sentenced Ibar to
death.? Ibar raises eight issues in this
appeal:? (1) whether certain
out-of-court statements were ?statements of identification? as contemplated by
section 90.801(2)(c), Florida Statutes (1995); (2) whether the trial court
erred in admitting witness testimony for purpose of impeaching that testimony;
(3) whether the trial court erred in admitting the transcript of testimony
given by a deceased witness in a prior trial; (4) whether the trial court erred
in allowing the State to introduce hearsay evidence and certain expert
testimony; (5) whether the trial court erroneously precluded the admission of
evidence regarding third-party motive and animosity and reputation evidence;
(6) whether the trial court erred in allowing the admission of evidence
regarding a live lineup; (7) whether the integrity of the trial was affected by
references to certain evidence denying Ibar due process; (8) whether the death
penalty in this case violates the Florida and Federal Constitutions.
LAW AND ANALYSIS
I.
Identification
Witnesses
Ibar?s
first two claims involve the testimony of Roxana Peguera, Marlene Vindel, Maria
Casas, Jean Klimeczko, Ian Milman, Melissa Munroe, and Tanya Qui񯮥s.
the defendant by Peguera, Vindel, Casas, Klimeczko, Milman, and Munroe should
not have been admitted as substantive evidence.? In addition, Ibar contends that these witnesses as well as
Quinones were called as witnesses simply for the purpose of impeachment.
by these witnesses were properly admitted under section 90.801(2)(c), Florida
Statutes (1999).? The State also argues
that the defendant did not object to the six witnesses based on the theories
now being advanced and therefore the issues have not been preserved for
appellate review.? The record reflects
that the defense did object to the identification evidence in question being
used as substantive evidence, but did not object to these six witnesses on the
basis of being called as witnesses simply for the purpose of impeachment.
During
the investigation, police showed these witnesses a photograph created from the
video surveillance tape taken at the victim?s home.? The witnesses testified at trial that when they were initially
shown the photo, they identified the person in the photo as Ibar or someone who
resembled Ibar.? In an attempt to show
that the initial identifications were more definite, the State then called
police investigators to testify that these six witnesses had actually confirmed
the identity of the person in the photo as Ibar.? The investigators? testimonies were not admitted as impeachment,
however; they were admitted as substantive evidence under section 90.801(2)(c),
Florida Statutes (1999).
We
agree with the defendant that the prior identifications testified to by the
officers should not have been admitted as substantive evidence under section
90.801(2)(c).? Section 90.801(2)(c)
provides as follows:
(2)
testifies at the trial or hearing and is subject to cross-examination
concerning the
statement and the statement is:
????????? .
. . .
(c)
perceiving the
person.
This statutory
provision has been interpreted by a number of courts as involving statements
of identification made by a witness to or victim of a crime or event.
meaning to the wording of the statute and its use of the term ?perceiving? and
is in keeping with the interpretation given to the statute by a number of our
district courts of appeal.?
Appeal in Stanford v. State, 576 So. 2d 737 (Fla. 4th DCA 1991),
addressed the meaning and intent of section 90.801(2)(c).
the victim?s daughter and another person to testify concerning out-of-court
statements the victim made to them which included the victim naming the
defendant as her assailant.? The trial
court allowed these statements as substantive evidence under section
90.801(2)(c), that is,? statements of
identification made after perceiving a person.?
In disagreeing with the trial court on this point, the district court
said:
???????? ???? We believe that the typical situation contemplated by the code
and the case law is one where the victim sees the assailant shortly after the
criminal episode and says, ?that?s the man.??
Hence, the phrase ?identification of a person made after perceiving him?
refers to the witness seeing a person after the criminal episode and identifying
that person as the offender.? We do not
believe this code provision was intended to allow other out-of-court statements
by a witness to others naming the person that the witness believes committed
the crime.? To extend the rule that far
would permit countless repetitions by a witness to others, regardless of time
and place, of the witnesses? belief as to the guilty party, a result we do not
believe intended by the drafters of the rule.
Id. at 739-40 (footnote omitted); see also State v.
Richards, 843 So. 2d 962 (Fla. 3d DCA 2003); Simmons v. State, 782
So. 2d 1000 (Fla. 4th DCA 2001).? This
interpretation of the statute has continued and formed the basis of the Second
District Court of Appeal?s decision in Smith v. State, 880 So. 2d 730
(Fla. 2d DCA 2004).?
In Smith, the Second District addressed the identical
statutory provision in a situation involving witnesses to the criminal
episode.? At Smith?s trial the State
presented the testimony of several witnesses who were present in the Charleston
Park neighborhood of Lee County, Florida, on the night Timmie Ray Mabry was
killed.? Three of the witnesses, Chad
Moreland, Iris Moreland, and Jason Kafus, had given prior recorded statements
to the police, and in those statements had either said they saw defendant Smith
shoot the victim or saw him running with the gun shortly after the
shooting.? The three had also said they
heard Smith say he had shot someone.?
However, at trial, Chad Moreland said he did not see Smith with a weapon
and did not hear Smith make any incriminating statement.
trial that she was not at the scene of the shooting and did not hear Smith make
any statement.? Jason Kafus testified
that he was not at the scene when the shooting occurred and that he did not
recall giving a statement to police.
As a result of this trial testimony, the State was
allowed to call as a witness Detective Jeff Brown, the lead investigator in the
case.? Detective Brown had interviewed a
number of witnesses in the case, including the Morelands and Kafus, and
he identified the tape-recorded statements of each.? The tapes were then played to the jury in their entireties.
evidence under the recorded recollection exception to the hearsay rule.
crime of manslaughter with a firearm and shooting into an occupied
vehicle.? On appeal and after
determining that the tape recordings did not satisfy the requirements of recorded
recollection, the Second District addressed the State?s argument that the tape
recordings were admissible as substantive evidence under section 90.801(2)(c).
In holding that only portions of the statements were
admissible as substantive evidence of identification, the Second District
quoted with approval a line of cases including Stanford that discussed
the admissibility of evidence under section 90.801(2)(c).
involved a variety of out-of-court identifications from lineups, photopaks, and
showups.? These cases also have one
feature in common??the person whose out-of-court identification was at issue
was either a victim of or a witness to the criminal episode.
So. 2d 452 (Fla. 4th DCA 2001), the victim of a carjacking described his
assailant to the police. name="_ftnref3" title="">
to the location where the victim was, and the victim identified him.
the defendant as his assailant.? Over
objection, the police officer was allowed to testify concerning the prior
identification.? On appeal the Fourth
District affirmed and found the identification admissible under section
90.801(2)(c) as a statement of identification made after perceiving the defendant.
principles applicable to the admission of this type of identification as
substantive evidence is the inherent reliability of identifications made
shortly after the crime.? See also
A.E.B. v. State, 818 So. 2d 534 (Fla. 2d DCA 2002) (finding admissible under
section 90.801(2)(c) an out-of-court identification made by a witness who saw
the juvenile approach the victim?s house and go into the backyard); Ferreira
v. State, 692 So. 2d 264 (Fla. 5th DCA 1997) (finding admissible the
eyewitness out-of-court identification of the defendant from a photographic
lineup one week after the murder); Brown v. State, 413 So. 2d 414 (Fla.
5th DCA 1982) (finding admissible the victim?s out-of-court statement of
identification despite the fact that the victim testified at trial that he was
mistaken in his prior identification).?
Without discussing the perimeters of section 90.801(2)(c), this Court in
Evans v. State, 838 So. 2d 1090 (Fla. 2002), found admissible the
out-of-court statements of identification made by two eyewitnesses to a
shooting. ??????
While
other courts, most notably the federal courts, have under similarly worded
statutes found admissible statements of identification made by persons other
than victims and witnesses to the crime, we believe the view espoused by our
district courts will better serve the ends of justice.
evidence an out-of-court identification made by anyone who sees or is shown a
picture of the defendant could result in the defendant being convicted through
the testimony of persons who have no relationship or connection to the criminal
offense.? As the Stanford court
also opined, expansion of the rule could lead to an endless repetition of
out-of-court identifications.
Although
Ian Milman?s prior testimony concerning identification was not admissible as
substantive evidence under section 90.801(2)(c), it was admissible as
substantive evidence under section 90.801(2)(a).? Section 90.801(2)(a) provides that an out-of-court statement is
not hearsay if the declarant, in this case Milman, testifies at the trial and
is subject to cross-examination about the statement.? In addition, the prior statement must be made under oath at a
trial, hearing, or other proceeding or in a deposition.
inconsistent with the declarant?s present testimony.?
Milman
testified at Ibar?s second trial that he was shown photos and initialed them
just to show that he looked at them.? Milman
said that the man in the still photo was not Ibar; he indicated that he never
said the person was Ibar and had never said it was Ibar at the grand jury
proceeding.? Detective Paul Manzella
testified that Milman positively identified Ibar.? The State impeached Milman using the grand jury transcript.
courtroom and then discussed Milman?s prior grand jury testimony with the
parties.? The judge pointed to the
language in Milman?s grand jury testimony that specifically contradicted his
trial testimony.? Thus, the trial judge
was within his discretion in determining that Milman?s identification of Ibar
was admissible as substantive evidence.?
See Johnston v. State, 863 So. 2d 271 (Fla. 2003) (holding
that a trial judge?s ruling on the admissibility of evidence will not be
disturbed on appeal absent an abuse of discretion).?
We
also find that Melissa Munroe?s prior identification statement was also
admissible as substantive evidence under section 90.801(2)(a).
of the crime.? She had previously told
police that the man in the still photo resembled Ibar and she signed the back
of the photo.? At trial, the State
questioned Munroe about whether she had seen Penalver and Ibar the weekend of the
murders.? Munroe said she did not
remember when she had seen them together, but that it could have been a month
or two before she read about the murders in the newspaper.
her previous grand jury testimony.? Munroe
explained that what she previously told the grand jury was not inconsistent
with her trial testimony because the police initially manipulated her
statements.? She explained that she just
continued to go along with what the police initially wrote in their
report.? As with Milman, the trial judge
deemed Munroe a ?turncoat witness.?
prior testimony to be admitted for its truth under section 90.801(2)(a).
Statements
made under oath include those statements made at grand jury proceedings.
756, 759 (Fla. 1995).? At trial, the
prosecutor showed Munroe the same photos that had been shown to her at the
grand jury proceeding and asked her to indicate whether the person in the
photos looked like Ibar.? When Munroe
said ?no,? the prosecutor then read from Munroe?s 1994 grand jury testimony, which
stated that the persons in the photos looked like Ibar and Penalver.
with her prior grand jury testimony.?
The grand jury testimony is therefore admissible for its substantive
value as an exception to the hearsay rule under section 90.801(2)(a).
in admitting Munroe?s prior identification as substantive evidence.
Although
the trial judge erred in allowing several of the identification statements to
be considered as substantive evidence, we find the error harmless.
2d 1129 (Fla. 1986).? In DiGuilio,
we explained that the State, as the beneficiary of any error, must demonstrate
beyond a reasonable doubt that the complained-of errors did not contribute to
the verdict.? That is to say, the State
must prove that ?there is no reasonable possibility that the error contributed
to the conviction.?? Id. at 1135
(citing Chapman v. California, 386 U.S. 18 (1967)).
A
close examination of the evidence presented in this case, both the properly
admitted and the inadmissible evidence, demonstrates the harmlessness of the
error in this instance.? In addition to
the statements of Peguera, Vindel, Casas, and Klimeczko identifying Ibar, which
Ibar concedes was proper as impeachment evidence but not substantive evidence,
there were other witnesses and items of evidence from which the jury could
conclude that Ibar was one of the perpetrators of this triple homicide.
murders.? The perpetrator identified as
Ibar removed his disguise and his face was visible on the videotape.
testified that he saw two men leaving in Sucharski?s Mercedes-Benz.
the driver of the car, but he got a good look at the passenger.
Mercedes.? Klimeczko testified that at
some point both Penalver and Ibar came to the residence on Lee Street in a big,
black, shiny new car.? Although Milman
denied that he had ever positively identified Ibar as the person in the still
photograph made from the videotape, he did say that the person in the
photograph resembled Ibar.? Moreover,
the trial judge admitted as substantive
evidence Milman?s grand jury testimony in which he positively identified
Ibar.? Munroe?s statement placing Ibar
and Penalver together during the weekend of the murder was also admitted as
substantive evidence.? On the issue of
identification, the jury also heard evidence from Kimberly San and David
Phillips that placed Ibar and Penalver in the Mercedes.
the person in the photograph resembled Ibar.?
We conclude that any error in admitting some of these identification
statements as substantive evidence rather than as impeachment evidence was
harmless error.? DiGuilio, 491
So. 2d at 1135.
We
agree with the State that the defendant?s claim that the witnesses were called
for the sole purpose of impeaching their testimony is not a matter that has
been preserved for appellate review because there was no objection made on this
basis in the trial court.? See
Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (?[I]n
order for an argument to be cognizable on appeal, it must be the specific
contention asserted as legal ground for objection, exception, or motion below.?).
testimonies were impeached, there was other evidence gleaned from these
witnesses that was not impeached and was used by the State to put together the various
pieces of evidence that linked Ibar to these murders.
II.
Prior Testimony/Unavailable Witness
Ibar
next alleges it was error to allow his mother?s testimony from his first trial
to be read to the jury in this trial because the jury was unable to personally
witness his mother, Maria Casas, testify, and assess her credibility.
the testimony to be read because at the first trial, his mother vehemently
denied that she identified Ibar in a photo; therefore, the only purpose for
reading this testimony was to open the door for the State to call its own
witness to testify that she made an identification during the
investigation.? Ibar credits his mother
Maria Casas?s testimony at the first trial for resulting in a hung jury because
she so vehemently denied identifying him in the surveillance photo.
?The
use of prior testimony is allowed where (1) the testimony was taken in the
course of a judicial proceeding; (2) the party against whom the evidence is
being offered was a party in the former proceeding; (3) the issues in the prior
case are similar to those in the case at hand; and (4) a substantial reason is
shown why the original witness is not available.?? Thompson v. State, 619 So. 2d 261, 265 (Fla. 1993) (citing
Hitchcock v. State, 578 So. 2d 685 (Fla. 1990); Johns‑Manville
Sales Corp. v. Janssens, 463 So. 2d 242 (Fla. 1st DCA 1984); Layton v.
State, 348 So. 2d 1242 (Fla. 1st DCA 1977)).? Casas?s testimony meets all four elements and was admissible on
this basis.
The
first trial was a judicial proceeding, and Casas was subject to cross-
examination on substantially the same issues involved in this trial.
undisputed due to her death.? Thus, all
the elements of Thompson have been satisfied.
Furthermore,
Ibar failed to properly preserve this issue for review.
Casas discussed at the first trial was never marked for identification.
as the issue raised on appeal.?
Description
A decision regarding first-degree murder,
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