Executed February 12, 2014 08:17 p.m. EST by Lethal Injection in Florida
7th murderer executed in U.S. in 2014
1367th murderer executed in U.S. since 1976
2nd murderer executed in Florida in 2014
83rd murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(8) |
|
Juan Carlos Chavez W / M / 28 - 46 |
Samuel James Ryce W / M / 9 |
Citations:
Chavez v. State, 832 So.2d 730 (Fla. 2002). (Direct Appeal)
Chavez v. State, 12 So.3d 199 (Fla. 2009). (PCR)
Chavez v. Secretary, 647 F.3d 1057 (11th Cir. 2011). (Habeas)
Final / Special Meal:
Steak, French fries, strawberry ice cream, mixed fruit and mango juice.
Final Words:
None.
Internet Sources:
Florida Department of Corrections
DC Number: M18034
Date of Offense: 9/11/1995
County: ORANGE
Date Sentenced: 11/23/1998
Date Received: 12/9/1998
Date of Execution: 2/12/2014
Current Prison Sentence History:
09/11/1995 1ST DG MUR/PREMED. OR ATT. 11/23/1998 ORANGE 9811700 DEATH SENTENCE
09/11/1995 SEX BAT BY ADULT/VCTM LT 12 11/23/1998 ORANGE 9811700 SENTENCED TO LIFE
09/11/1995 KIDNAP;COMM.OR FAC.FELONY 11/23/1998 ORANGE 9811700 SENTENCED TO LIFE
Incarceration History: 12/09/1998 to 02/12/2014
"Fla. man executed in boy's rape, murder," by Tamara Lush. (Associated Press 02.13.14)
STARKE, Fla. -- The father of a 9-year-old South Florida boy raped and murdered in 1995 said he hopes the killer's execution sends a strong signal to other would-be child molesters and abductors. "Don't kill the child. Because if you do, people will not forget, they will not forgive. We will hunt you down and we will put you to death," said Don Ryce, whose son Jimmy Ryce was kidnapped at gunpoint after getting off a school bus. He spoke Wednesday night after Juan Carlos Chavez, 46, was executed by lethal injection at Florida State Prison. Chavez was pronounced dead at 8:17 p.m., according to Gov. Rick Scott's office.
Chavez abducted Jimmy Ryce at gunpoint after the boy got off a school bus on Sept. 11, 1995, in rural Miami-Dade County. Testimony showed Chavez raped the boy, shot him when he tried to escape, then dismembered his body and hid the parts in concrete-covered planters. Ryce's parents turned the tragedy's pain into a push for stronger U.S. laws regarding confinement of sexual predators and improved police procedures in missing child cases. Their foundation provided hundreds of free canines to law enforcement agencies to aid in searches for children.
Despite an intensive search in 1995 by police and volunteers, regular appeals for help through the media and distribution of flyers about Jimmy, it wasn't until three months later that Chavez's landlady discovered the boy's book bag and the murder weapon — a revolver Chavez had stolen from her house — in the trailer where Chavez lived. Chavez later confessed to police and led them to Jimmy's remains. He was tried and found guilty of murder, sexual battery and kidnapping.
Chavez made no final statement in the death chamber, but did submit a statement laced with religious references. He said he had found forgiveness in religion and that he wished for "unfailing love be upon us, upon me, upon those who today take the life out of this body, as well as those who in their blindness or in their pain desire my death. God bless us all."
Don Ryce had said recently that he and his wife had become determined to turn their son's horrific slaying into something positive, in part because they felt they owed something to all the people who tried to help find him. They also refused to wallow in misery. "You've got to do something or you do nothing. That was just not the way we wanted to live the rest of our lives," he said. The Ryces created the Jimmy Ryce Center for Victims of Predatory Abduction, a nonprofit organization based in Vero Beach that works to increase public awareness and education about sexual predators. It also provides counseling for parents of victims and helps train law enforcement agencies in ways to respond to missing children cases.
The organization has also provided, free of charge, more than 400 bloodhounds to police departments around the country and abroad. Ryce said if police searching for Jimmy had bloodhounds they might have found him in time. The Ryces also helped persuade then-President Bill Clinton to sign an executive order allowing missing-child flyers to be posted in federal buildings, which they had been prevented from doing for their own son. Another accomplishment was 1998 passage in Florida of the Jimmy Ryce Act, versions of which have also been adopted in other states. Under the law, sexual predators found to be still highly dangerous can be detained through civil commitment even after they have served their prison sentences. Such people must prove they have been rehabilitated before they can be released. Chavez had no criminal record, so the law would not have affected him.
The Florida Supreme Court refused Wednesday morning to stay the execution to allow Chavez time to pursue appeals, and the U.S. Supreme Court followed suit hours later. The appeals prompted a more than two-hour delay in Chavez's scheduled execution.
"Juan Carlos Chavez executed for 1995 rape, murder of Jimmy Ryce," by Tamara Lush. (AP 2/12/14)
STARKE, Fla. — A man was executed Wednesday night in Florida for raping and killing a 9-year-old boy 18 years ago, a death that spurred the victim's parents to press nationwide for stronger sexual predator confinement laws and better handling of child abduction cases . . . . MIAMI (AP) — In the 18 years since 9-year-old Jimmy Ryce's rape and murder, his father and his mother, before her death, tried to alleviate the pain of their family's tragedy by working for society's good. They pushed for new laws regarding confinement of sexual predators and worked to improve police procedures in missing child cases. But with the killer's scheduled execution set for Wednesday, Don Ryce said the death of Juan Carlos Chavez will finally bring some measure of justice. Barring a successful last-minute appeal, Chavez is scheduled to die by lethal injection at Florida State Prison in Starke . . . .
"Cuban immigrant executed for 1995 murder of Florida boy," by Bill Cotterell. (Thu Feb 13, 2014)1
(Reuters) - A Cuban immigrant was executed by lethal injection on Wednesday for the 1995 kidnapping, rape and murder of a 9-year-old south Florida boy, a spokeswoman for the governor said. Juan Carlos Chavez, who confessed to the murder of Jimmy Ryce, was executed at the Florida State Prison at Starke, Florida, at 8:17 p.m. EST (0117 GMT Thursday), said Jackie Schutz, a spokeswoman for Governor Rick Scott.
A Florida law passed in the wake of the killing cleared the way for imprisoned sexual offenders to be held after their release if found likely to repeat their crimes. The law has been replicated across the United States. The execution, attended by Ryce's father, was briefly delayed by a last-minute appeal that the U.S. Supreme Court denied.
The Department of Corrections said Chavez had a last meal of steak, French fries, strawberry ice cream, mixed fruit and mango juice in the afternoon. He had no visitors, officials said. In a written statement released by the state after his death, Chavez expressed no remorse, saying that "None of us can pass judgment on another (man's) sins." Chavez wrote, "I doubt that there is anything I can say that would satisfy everybody, even less those who see in me nothing more (than) someone deserving of punishment."
Chavez, who worked as a farmhand and had no criminal history, kidnapped the boy at gunpoint as he got off a school bus in Redland, an agricultural area of south Miami-Dade County. He took Ryce to his trailer and raped him. When the boy tried to escape, Chavez shot him in the back, dismembered him and hid his body in plastic pots. The boy's disappearance shook south Florida and garnered national attention. Hundreds of volunteers signed up for the search and his parents held a stream of press conferences. Three months after disappearing, Jimmy's remains were found near Chavez's trailer after his landlord found the boy's school bag.
Chavez arrived in south Florida on a raft from Cuba with two others in 1991 and was working as a farmhand at the time of the murder. Little is known about his background or family, who remained in Cuba. The Florida Supreme Court upheld Chavez's 1998 conviction and death sentence. Subsequent appeals were denied.
After Jimmy's death Don Ryce and his mother Claudine, who died in 2009, became advocates for abducted and missing children. They opened a center for abduction victims in south Florida and have provided hundreds of bloodhounds to law enforcement nationwide to help find missing children. The Ryces were on hand as President Bill Clinton in 1996 signed an order instructing federal agencies to post missing-children posters in federal buildings.
Don Ryce, a retired lawyer now living near central Florida, told the Miami Herald recently that the loss of his son broke the heart of his wife and his daughter. "This is the kind of loss that never gets right, that you never completely recover from," Ryce told the paper. His daughter, Jimmy's half-sister, Martha, committed suicide in 2012. After the execution Don Ryce told reporters that he had a message for future child predators. "Don't kill the child. Don't kill the child," Ryce said. "Because if you do, people will not forget. They will not forgive. We will hunt you down, and we will put you to death."
"Juan Carlos Chavez executed for 1995 killing of Jimmy Ryce." (10:19 p.m. EST, February 12, 2014)
STARKE— A Cuban immigrant was executed by lethal injection Wednesday for the 1995 kidnapping, rape and murder of 9-year-old Jimmy Ryce, a spokesman for the governor said. Juan Carlos Chavez, who confessed to the murder of Ryce, who lived in south Miami-Dade County, was executed at the Florida State Prison at Starke at 8:17 p.m., said Jackie Schutz, a press aide for Governor Rick Scott.
A Florida law passed in the wake of the killing cleared the way for imprisoned sexual offenders to be held after their release if found likely to repeat their crimes. The law has been replicated across the United States.
The execution, attended by Ryce's father, was briefly delayed by a last-minute appeal by Chavez's lawyers which the U.S. Supreme Court denied.
The Department of Corrections said Chavez had a last meal of steak, French fries, strawberry ice cream, mixed fruit and mango juice in the afternoon. He had no visitors, the DOC said. Chavez said nothing to witnesses in the death chamber. But in a final written statement released by the state after his death, Chavez expressed no remorse, saying that "none of us can pass judgment on another [man's sins. "I doubt that there is anything I can say that would satisfy everybody, even less those who see in me nothing more [than] someone deserving of punishment."
Chavez, who worked as a farmhand and had no criminal history, kidnapped the boy at gunpoint as he got off a school bus. He took Ryce to his trailer and raped him. When the boy tried to escape, Chavez shot him in the back, dismembered him and hid his body in concrete-filled plastic pots. The boy's disappearance garnered national attention. Hundreds of volunteers signed up for the search and his parents held a stream of news conferences. Three months after disappearing, Jimmy's remains were found near Chavez's trailer after his landlord found the boy's school bag. The Florida Supreme Court upheld Chavez's 1998 conviction and death sentence. Subsequent appeals were denied, though Chavez last week filed a final appeal with the U.S. Supreme Court.
Jimmy's father, Don Ryce, spoke to reporters shortly after 9 p.m. Wednesday. He said: "Nineteen years ago, Juan Carlos Chavez was faced with a choice. He kidnapped my son Jimmy, he sexually assaulted him and [then] it was time to decide would he let him live or would he take his life. We know what he decided to do and the choice he made. "As a result of that choice, he died today. This choice unfortunately will come up in the future in other cases when someone has committed a crime against a child, molested one, raped one or kidnapped one. They also will be faced with the same kind of choice that Chavez was faced with so long ago. "When they do, when they’re processing what they think they want to do, I hope they will remember that it will be burned in their mind, four words: Don’t kill the child, don’t kill the child, because if they do people will not forget, they will not forgive, we will hunt you down and we will put you to death."
Ted Ryce, Jimmy's older brother, said: "Many people have asked why I decided to come today. I did not come today to celebrate Juan Carlos’s execution. In fact, I did not want to come. So why did I come? I came here to represent my brother Jimmy Ryce. I came here for my sister Martha and my mother, Claudine. I came here today because I believe in the justice that has been served on this day. I am here to support that belief.
"I’m also here today as a symbol of strength to show you that in spite of all the terrible tragedies we’ve been through, my father and I still stand strong and strength is something that is sorely lacking in our country today. Many people did not believe that Juan Carlos Chavez should be put to death for his horrible crime of raping and murdering my brother Jimmy Ryce. I believe this comes from a place of weakness, not strength. It comes from not being able to face the atrociousness of some men’s actions and punish them on a level commensurate with their crime. "But we must be strong. We must do what it takes to send a clear message to other child predators that if they go after children, if they kill children, that they will die at the executioner’s hands. Today will bring no closure for my family. As my father has stated, 'Closure does not exist,' but the justice served this day after a painful 19 years will end the chapter on this part of our life and now we look forward to moving on. Thank you."
"Jimmy Ryce’s killer executed." (Associated Press February 12, 2014)
STARKE — A man was executed Wednesday night in Florida for raping and killing a 9-year-old boy 18 years ago, a death that spurred the victim’s parents to press nationwide for stronger sexual predator confinement laws and better handling of child abduction cases. Juan Carlos Chavez, 46, was pronounced dead at 8:17 p.m. Wednesday after a lethal injection at Florida State Prison, according to Gov. Rick Scott’s office. Chavez made no final statement in the death chamber, but did submit a statement laced with religious references in writing. He moved his feet frequently after the injection began at 8:02 p.m. but two minutes later stopped moving.
Chavez abducted Jimmy Ryce at gunpoint after the boy got off a school bus on Sept. 11, 1995, in rural Miami-Dade County. Testimony showed Chavez raped the boy, shot him when he tried to escape, then dismembered his body and hid the parts in concrete-covered planters.
Ryce’s parents turned the tragedy’s pain into a push for stronger U.S. laws regarding confinement of sexual predators and improved police procedures in missing child cases. Their foundation provided hundreds of free canines to law enforcement agencies to aid in searches for children. The boy’s father, 70-year-old Don Ryce, witnessed the execution along with his son Ted, 37. They told reporters outside the prison that the execution closes a long, painful chapter and hopefully sends a powerful message to other would-be child abductors. “Don’t kill the child. Because if you do, people will not forget, they will not forgive. We will hunt you down and we will put you to death,” Ryce said.
Despite an intensive search in 1995 by police and volunteers, regular appeals for help through the media and distribution of flyers about Jimmy, it wasn’t until three months later that Chavez’s landlady discovered the boy’s book bag and the murder weapon - a revolver Chavez had stolen from her hous e - in the trailer where Chavez lived. Chavez later confessed to police and led them to Jimmy’s remains. He was tried and found guilty of murder, sexual battery and kidnapping.
In his written statement, Chavez said he had found forgiveness in religion and was not afraid of death. He said he wished for “unfailing love be upon us, upon me, upon those who today take the life out of this body, as well as those who in their blindness or in their pain desire my death. God bless us all.” Chavez’s latest state and federal court appeals focused on claims that Florida’s lethal injection procedure is unconstitutional, that he didn’t get due process during clemency hearings and that he should have an execution stay to pursue further appeals. The Florida Supreme Court, however, refused Wednesday morning to stay the execution to allow Chavez time to pursue those challenges, and the U.S. Supreme Court followed suit hours later. The appeals prompted a more than two-h our delay in Chavez’s execution.
The victim’s father said recently that he and his wife had become determined to turn their son’s horrific slaying into something positive, in part because they felt they owed something to all who tried to help find him. They also refused to despair. “You’ve got to do something or you do nothing. That was just not the way we wanted to live the rest of our lives,” he said.
The Ryces created the Jimmy Ryce Center for Victims of Predatory Abduction, a nonprofit organization based in Vero Beach that promotes public awareness and education about sexual predators. It also counsels parents of victims and helps train law enforcement agencies in responding to missing children cases. The organization also has provided, free of charge, more than 400 bloodhounds to police departments nationwide and abroad. Ryce said if police searching for Jimmy had bloodhounds they might have found him in time. The Ryces also helped persuade then-President Bill Clinton to sign an executive order allowing missing-child flyers to be posted in federal buildings, which they had been prevented from doing for their own son.
Another accomplishment was 1998 passage in Florida of the Jimmy Ryce Act, versions of which have been adopted in other states. Under the law, sexual predators found to be still highly dangerous can be detained through civil commitment even after they have served their prison sentences. Such people must prove they have been rehabilitated before they can be released. Chavez had no criminal record, so the law would not have affected him. Chavez’s only visitor Wednesday was his spiritual adviser, prison officials said.
Following is a list of inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon
63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules
64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy
65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.
66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis
67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr
68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons
69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park
70. Manuel Valle 28 September 2011 lethal injection Louis Pena
71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers
72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer
73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott
74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.
75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson
76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan
77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis
78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson
79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)
80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley
81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins
82. Thomas Knight a/k/a Askari Abdullah Muhammad 7 January 2014 lethal injection Sydney and Lillian Gans, Florida Department of Corrections officer Richard Burke
83. Juan Carlos Chavez 12 February 2014 Jimmy Ryce
On the afternoon of September 11, 1995, nine-year-old Samuel James “Jimmy” Ryce disappeared after having been dropped off from his school bus at approximately 3:07 p.m. at a bus stop near his home in the Redlands, a rural area of south Miami Dade County. An extensive and well-publicized search of the area followed, but failed to locate the child.
At that time, the defendant, Juan Carlos Chavez, was living in a trailer on property owned by Susan Scheinhaus. Chavez worked as a handyman for the Scheinhaus family, and was permitted to use their Ford pickup truck to run errands or do other work for the family. As part of his duties, Chavez frequently cared for horses owned by the Scheinhaus family, but housed on property owned by David Santana, which contained an avocado grove. There was also a trailer on that property, referred to throughout Chavez's trial as the “avocado grove trailer” or the “horse-farm trailer.”
In August or September of 1995, Mrs. Scheinhaus reported to the police several times that items (including a handgun and some jewelry) were missing from her residence. Although she suspected Chavez, she lacked evidence of his culpability. She testified at trial that, in November, she had decided to obtain the evidence required to pursue her claim. With the help of a locksmith, on December 5, 1995, while Chavez was away for the day, Mrs. Scheinhaus and her son, Edward Scheinhaus (“Ed”), entered the trailer located on her property which Chavez occupied. She found the handgun-which she later identified in court as a gun she had purchased in April of 1989 - in plain view on a counter opposite the trailer door. As Mrs. Scheinhaus continued to look inside the trailer, she discovered, in the closet area, a book bag which was partially open. Looking inside the bag, she saw papers and books. The work appeared to be in a child's handwriting, and she noticed the name “Jimmy Ryce.” She also observed this name on one of the books. When Mrs. Scheinhaus asked her son to look at the items, he also recognized the child's name. As a result of this discovery, Mrs. Scheinhaus notified the FBI.
When Chavez returned to the Scheinhaus residence at about 7:15 on the evening of December 6, armed FBI agents quickly surrounded and secured him. After being patted down, he agreed to go with Metro Dade Police officers, who were also present, to the station for questioning. Chavez's detention included a questioning process that was punctuated by regular refreshment, food, bathroom breaks and a rest period, and interspersed with two outings returning to the Scheinhaus and Santana properties in southern Miami Dade County. Although Chavez was first brought to the police station on the night of December 6, he did not sleep until shortly after midnight on December 7. Detective Luis Estopinan, who was bilingual, conducted most of the questioning, although other officers also participated. Various police detectives, an FBI agent, Mrs. Scheinhaus and an independent interpreter all had opportunities to observe Chavez at various times throughout this period. Chavez was consistently described as alert and articulate during this time, and no one observed police detectives mistreating Chavez in any way throughout the period of questioning. He received repeated warnings and instructions in accordance with Miranda, and indicated that he fully understood them on four occasions during the period of interrogation.
Over the course of the interrogation, and after having been repeatedly advised of his Miranda rights and knowingly waiving them, Chavez provided several versions of his involvement in Jimmy's disappearance. As law enforcement officers engaged in a contemporaneous investigation of Chavez's changing narratives, he agreed to accompany officers on two occasions to visit the horse farm property and the Scheinhaus property, where he showed them the location of the events he had recounted had transpired. On those occasions, Chavez was asked to reveal where the boy's remains were located, to permit Jimmy's family to have closure. After the physical evidence resulting from this contemporaneous investigation totally discredited each version of events which Chavez had initially proposed, Chavez agreed to tell the truth. However, Chavez explained that, before he would disclose the location of Jimmy's remains, he wanted the officers to guarantee that he would receive the death penalty. Estopinan advised Chavez that he could not guarantee that the death penalty would be imposed. However, Chavez continued to talk, asserting that the events would not have happened had he not been sexually battered by a relative in Cuba.
Estopinan told Chavez that he “felt that it was time for him to be truthful and tell us what really happened to Jimmy, and went back and began to ask him about Jimmy and where Jimmy was located. We wanted to find Jimmy.” A break followed this inquiry and then Chavez reiterated to Sergeant Jimenez the most recent account which he had given Estopinan. Chavez then went to the restroom for another break and, upon returning to the interview room, informed the officers that they were now going to hear the truth: “What do you want to know? I'll tell you what happened to Jimmy Ryce.” Chavez proceeded to admit to Estopinan and Jimenez that he had abducted Jimmy at gunpoint, traveled to the horse ranch, and sexually assaulted Jimmy before finally shooting him. Estopinan explained that the officers would need details from Chavez, and requested permission to take a sworn statement. Chavez agreed to continue the questioning, and Estopinan and Jimenez “began to get details” about what had happened to Jimmy Ryce.
At trial, Estopinan testified regarding the final version of Chavez's statement. Chavez said that he had observed young children playing in water on his way home from Home Depot at approximately 3 p.m. Some of the boys were wearing just their underwear, and “as he saw the young boys wearing just their underwear, he took an interest in them.” After observing the children, Chavez drove off, but returned a short while later, because he “still had a mental picture of what happened, meaning that he saw the young boys in their underwear by the canal bank, and decided that he wanted to take another look.” Estopinan testified: "And while this is occurring, he was driving on the avenue, he sees a figure of a person, and then he realizes it was a young boy that he saw. At the same time he sees the young boy who later turns out to be Jimmy Ryce, again he's thinking about the young boys who are at the canal bank. He said at this point he's feeling something sexual and ... that he has a mental picture in his mind of the young boys in the canal with their underwear and he's also picturing Jimmy Ryce the young boy.
As he's driving the pickup truck in the opposite direction of Jimmy Ryce, he said at the time he had with him the Scheinhaus revolver, the Taurus, .38 caliber. And he said at this time Jimmy is walking on the left side of the road, and what he did is driving on the opposite side, he begins to drive on the opposite side of the traffic and drives and stops right in front of Jimmy Ryce causing him to stop. The minute that Jimmy stops, he stops the truck, he gets out of the truck with the gun in his hand and tells Jimmy at gunpoint, do you want to die? And Jimmy made a comment to him, no. And he told Jimmy in English to get inside the truck. And Jimmy responds by getting into the truck via the driver's side door. Once Jimmy is inside the pickup truck, Jimmy removes his backpack and puts it between his legs and he Chavez gets into the truck with Jimmy, still holding the handgun. It's at that point he takes the revolver and he places it underneath his lap and tells Jimmy to put his head down so Jimmy wouldn't be seen by anyone. And at that point he tells me that he drives back to the horse ranch where the trailer was located. He told me that Jimmy left his backpack inside the pickup truck.
Once they both exit the pickup truck, both him and Jimmy at his direction they go inside the trailer that's located inside the horse ranch. He goes on to explain that once inside the trailer he tells Jimmy to sit down on the bed. Jimmy complies. And that he sits on a black office chair close to Jimmy by the entrance and he begins to talk to Jimmy, he notices that Jimmy is, he's nervous and he's scared and Jimmy begins sobbing. And while this is occurring, Jimmy began to ask him, why did you take me? And Chavez explains to him, well, why do you think I took you, things to that effect. He wants Jimmy to answer his own questions. He goes on to explain that at this point he feels like doing something sexual and that he tells Jimmy to remove his clothing. He said Jimmy complied by removing his shirt, his shorts, his sneakers and he wasn't sure if Jimmy was wearing socks or not. And then Jimmy remains in his underwear only, his white underwear he believes. He goes on to tell me that at this point he gets up and he tells Jimmy to also go ahead and remove his underwear. Jimmy complies and removed his underwear. And then he tells Jimmy to lay on the bed in the trailer and Jimmy complies. Jimmy lays on his stomach on the bed. Chavez tells me that he went into the bathroom area of the trailer looking for something. And I asked him, what are you looking for. He told me I was looking for something like a lubricant. And then he goes into the bathroom and he finds a see through plastic container, he said, with some blue lettering on it. And then he took a sample of the contents of the container to see if it would burn, and when it didn't, he came back to where Jimmy was and he placed this, the substance or the lubricant on to Jimmy's rectum, he said, and as he was placing the lubricant on Jimmy's rectum, Jimmy is asking what are you doing. And he mentioned to Jimmy that what do you think is going to happen, things to that effect.
He unzipped his pants, he exposed his penis and he inserted his penis into Jimmy's rectum. He told me right after he inserted his penis in Jimmy's rectum, he again has a mental picture of the young boys in their underwear which he had seen at the canal and he said that he quickly ejaculated, and once he ejaculated inside Jimmy, he said he removed himself." Chavez said that he and Jimmy then dressed and left in the truck, indicating that he had intended to leave Jimmy in the area where he had picked him up. However, upon nearing the area where he had abducted Jimmy, Chavez noticed that police cars were present. Believing “that someone had reported Jimmy missing and they were looking for Jimmy,” Chavez kept Jimmy's head down in the truck and returned to the horse farm. Estopinan testified regarding what transpired when Chavez and Jimmy returned to the horse farm: "He said once inside the trailer, Jimmy is trembling and crying. And Jimmy asked, what's going to happen to me? Are you going to kill me? He noticed that Jimmy was very frightened. And he begins to speak to Jimmy in order to calm him down." Chavez told Estopinan that he tried to calm Jimmy down by asking him questions.
He then explained how he killed Jimmy: "Well, the next thing Chavez mentions happened is he heard a helicopter fly over the horse ranch. It was his opinion he believed the helicopter belonged to the police, that the police were searching for Jimmy. When he heard the helicopter flying over him, he went ahead and held Jimmy close by to him so Jimmy wouldn't go anywhere, and eventually he heard the chopper several times flying over him, and at one point he said he got up and began looking out the window to see if he could see the chopper, the helicopter that is. And while he was looking for the helicopter, Jimmy is still close to the front entrance of the trailer. He said that Jimmy made a dash for the door, Jimmy ran for the door trying to escape. He said that he tried to reach up to Jimmy, but he got tangled on the floor of the bathroom and at that point he said he took out the revolver belonging to Mrs. Scheinhaus, he pointed the handgun in the direction of Jimmy, fired one time hitting him. He said that Jimmy collapsed right by the door and collapsed to the right by the door inside the trailer. He said after he shot Jimmy, he came up to Jimmy, he turned Jimmy around and held Jimmy in his arms and Jimmy took one last breath, he expressed it, and he said that was the last thing Jimmy did."
Chavez described that, to dispose of Jimmy's body, he found a metal barrel inside the trailer at the horse farm, and placed Jimmy's body inside the barrel. He transported the barrel containing the body from the horse farm to the Scheinhaus residence, where he removed the barrel and placed it in Chavez's disabled van, which was parked in the stable area. Chavez removed Jimmy's book bag from the pickup and carried it with him to his own trailer. That night, Chavez looked at some of the note pads inside Jimmy's book bag. Chavez noticed blood on his own clothing and eventually destroyed the clothes. During the night and into the next morning, “all he could think about was what he was going to do with Jimmy's body.” Two or three days later, Chavez attempted to use a backhoe on the Scheinhaus property to dig a hole in which to bury Jimmy, but the machine did not operate properly. Chavez remained concerned, particularly when he noticed that the lid of the barrel which contained Jimmy's body had come off. Chavez pulled Jimmy's body from the barrel onto a piece of plywood, and, from there, his remains fell to the ground. “And he said at that point he went ahead and began to dismember Jimmy's body with the use of a tool.” Chavez described the tool he used to dismember Jimmy's body, and even drew a picture of the implement. He explained that it took him a while to dismember Jimmy's body, as he was becoming sick and vomiting. “But then he completes it and he places three of Jimmy's parts into these three planters. And once he fills these planters with Jimmy's remains, he goes ahead, goes into the stable area of the stable where the building is located and he locates some cement bags. With those cement bags he seals the tops of the planters with cement.”
The oral interview concluded at 10:50 pm on December 8. While an interpreter and a stenographer were being obtained to record a formal statement, Chavez remained in the interview room, and did not further converse with Estopinan until the interpreter arrived. Then, at 11:45 pm, Chavez began to provide a formal statement. Estopinan, Sergeant Jimenez, and the court reporter were present as the statement was obtained. After some preliminary questions, Chavez was again advised of his Miranda rights. At this time, Chavez confirmed that he had voluntarily agreed to waive his first court appearance and that he had given the officers consent to search his property. When the statement was completed, each page of the statement was reviewed, and Chavez made any corrections he desired. He acknowledged in the statement that he was making the transcribed statement voluntarily; that no one had threatened or coerced him into making the statement; and that he had been treated well. Estopinan testified that, at the time he made his sworn statement, Chavez was “polite, cooperative and he was alert.”
Marilu Balbis testified that she was the professional interpreter providing services during Chavez's sworn statement. Ms. Balbis was an independent contractor who had been an interpreter and translator for twelve years. The confession was unusually long, and Ms. Balbis had the opportunity to closely observe Chavez's demeanor. Chavez did not appear sleepy, and was alert. At no point did the detectives give Chavez any answers. Once the confession was finished, Ms. Balbis read each page, word by word, to Chavez to make sure that it was typed correctly. Chavez approved every page by initialing each page at the bottom. Ms. Balbis indicated that the police officers treated Chavez with courtesy, and that she did not observe them threaten or raise their voices toward Chavez.
Officer Michael Byrd recovered the loaded handgun from Chavez's trailer. Byrd also found a poster in Chavez's trailer bearing the likeness of Jimmy Ryce, which he processed as evidence. A box of bullets containing live ammunition, and one spent shell casing, were also found in the trailer. Crime scene technician Elvey Melgarejo testified that, on December 8, 1995, he helped search and process a trailer on a horse/avocado farm. He searched the trailer and found “a tube of JR water-based lubricant” on a shelf inside the trailer. Melgarejo collected a sofa cushion and part of the wood floor of the trailer just inside the front door. These items were packaged for transmittal to serology for processing. Melgarejo also traveled to the Scheinhaus property, where he noticed the three concrete-filled planters and became suspicious that they might contain a cadaver. Fingerprint technician William Miller identified Chavez's fingerprint on the handgun recovered from his trailer. To determine whether fingerprints were present on the handgun, he placed it in a laboratory chamber in which super glue fumes were released, surrounding the handgun and adhering to the residue and oils left by any fingerprints. As a result, a fingerprint matching that of Chavez was found on the firearm. Miller testified that there were “ten points of identification throughout this fingerprint, which is only common to Chavez. It's an absolute and positive identification that his left thumb print made on the weapon.”
On December 8, 1995, Miller also examined the books and notebooks found inside the book bag belonging to Jimmy Ryce. He found Chavez's fingerprint on the front of one notebook found in the book bag. The fingerprint located on the interior of the notebook cover was found to “have sixteen points of identification, a positive identification, based on the left thumb print of Mr. Juan Carlos Chavez against the print which was developed on the inside cover.” Another print of value was located on the textbook entitled Journeys in Science. He found “this particular print of value from this area to be made by the right middle fingerprint of Chavez. I had nine points of identification.” When compared to the prints of Mrs. Scheinhaus and Edward Scheinhaus, the prints on the book bag contents did not match.
Forensic serologist Theresa Merritt of the Metro Dade Police Department testified that she received items for examination on December 8, 1995. She was dispatched to the horse farm to assist crime scene personnel in attempting to determine whether blood was present. Merritt tested a twin-size mattress from the trailer, a cushion present on the bench in the trailer and a cut-out portion of the threshold area from the floor of the trailer. A scraping from the floor area produced a positive result for the presence of blood. Another sample, from a cushion in the trailer, yielded blood scrapings.
Anita Mathews, assistant director of the forensic identity testing laboratory for “LabCorp” of North Carolina, testified that she was “responsible for doing interpretation on the results of the testing that the technologists conduct.” Mathews testified that they were not able to obtain a sufficient quantity or quality of genetic material from samples collected from the body of Jimmy Ryce for testing. However, DNA from the oral swab samples taken from his parents, Don and Claudine Ryce, was compared to the blood found on the floor of the trailer. This comparison produced the conclusion that the blood on the floor was extremely likely to have come from a child of Don and Claudine Ryce. Two other blood samples taken from the floor of the trailer carried the same genetic characteristics. Another blood sample, taken from the cushion found in the trailer, also was consistent with having come from the biological child of the Ryces.
Dr. Roger Mittleman, Chief Medical Examiner for the Dade Medical Examiner's Department, testified that, on December 9, he conducted an examination of the contents of the three planters. The cement in each planter encased the remains of what appeared to be a young boy. The remnants of a cement bag were in at least one of the planters. Dr. Mittleman described the clothing found on Jimmy's body: “It was dressed in this T-shirt and had on jeans and underwear. There was one sneaker on; ?one sneaker was off. There were socks.” The doctor then corrected himself, and stated that only one sock was found on the body. The doctor testified that a body expands as it decomposes due to the breakdown of material and biological processes, causing gases to expand. This process could cause a body placed in a barrel to expand to the point that a lid would be forced off or open. The remains were significantly decomposed. Using dental records from Jimmy's family dentist, a forensic dentist testified that the comparison with the jaw and teeth of the body was so strong that the “skeletal remains” were “positively identified as that of Jimmy Ryce.” An X-Ray of the body cavity revealed a flattened projectile jacket that lodged in the area of the heart and “great vessels.” The bullet entered at the point where the right sixth rib is located, went upward in the body, through the lung and the heart, and exited from the upper left chest Based upon the trajectory of the bullet, the gun would have been pointing slightly upward and below the individual who was shot. However, there was no evidence on the body which would demonstrate how far away the gun was when it was fired.
On December 20, 1995, Detective McColman had transported a tool known as a “bush hook,” which had previously been impounded, to the medical examiner's office. Dr. Mittleman was asked to examine the bush hook to determine if its cutting characteristics were consistent with the injuries inflicted on Jimmy's body. The medical examiner noted that a number of the injuries inflicted on the body during dismemberment were consistent with having been made by the bush hook. However, he also testified that it was possible that more than one instrument had been used. Firearms examiner Thomas Quirk of the Metro-Dade Police Department Crime Laboratory testified that a .38 caliber Taurus model 85 revolver (State's Exhibit 23) was submitted for his examination after it had been processed by the fingerprint section. He also received one aluminum jacket from a projectile recovered from the body of the victim, and two .38 caliber casings-a projectile identified as having come from a red bullet box and a casing that had been fired from a firearm. The two empty .38 caliber shell casings found in Chavez's trailer were fired from the .38 recovered from Chavez's trailer. Quirk testified that the manufacture of the barrel and the rifling process provide microscopic differences which are transferred to the bullet during firing and which repeat, similar to a fingerprint. Also, the projectile jacket recovered by the medical examiner and the lead core (the fatal bullet) were positively identified as having been fired by the gun recovered from Chavez's trailer: “My conclusion is that this bullet was fired in this weapon to the exclusion of all other weapons in the world. This is the gun that fired this bullet.”
After the State rested, Chavez moved for judgment of acquittal, which was denied. Defense counsel specifically argued the State's failure to establish a corpus delicti for the crime of sexual battery. The defense then began the presentation of its case. During the examination of Ed Scheinhaus, Ed explained that he had been under house arrest at the time the kidnaping occurred. He worked from 10 p.m. to 6 a.m., and was required to stay at home at all other times, unless he arranged in advance to be away from his house. He had an ankle device, and would be called each day at random times (as controlled by a computer) throughout the period he was confined to his home. When called, he would have to “report in” by placing the ankle bracelet next to a device installed in his home. Chavez also testified in his own defense, stating that he had belonged to a counter-revolutionary group in Cuba. He gave details of his imprisonment (for attempting to escape and for stealing military property) in Cuba, and his eventual escape from the island.
According to his trial testimony, Chavez encountered Ed Scheinhaus at the horse farm trailer after Jimmy had already been killed, and helped Ed to dispose of the boy's body. Chavez testified that, after he was brought to police headquarters in connection with Jimmy's disappearance, he was mistreated. He stated that, when he was placed in the police car, he was told, “Don't do anything stupid or we'll shoot you. We're going to kill you.” He complained that his watch and beeper were taken away from him, and returned only after he gave his final confession. Chavez stated that, when they were interrogating him, he did not know what date or time it was. He said that he was not permitted to sleep, and no one ever offered him a pillow or a blanket. Chavez also claimed that the officers brought the book bag into the interrogation room, and asked Chavez to handle it and look through its contents, which he did. According to Chavez, the police goaded him into making up lies. He stated that the officers suggested details of his confession, and, to avoid deportation, he did whatever they wanted. After the defense rested, the State presented rebuttal testimony. The officers refuted that they had ever threatened Chavez, coerced him, or suggested any part of the confession to him; they denied that they had taken Chavez's watch away or that anyone had hit him;and they testified that he had never mentioned Ed as the perpetrator during the questioning process. Ed Scheinhaus's parole officer testified that Ed (who is in the pest control business) had his permission to travel to take care of a client on the afternoon on which he had received a speeding ticket, and that Ed had shown the ticket to the parole officer himself, without being asked to do so.
He testified that Ed had lost his ankle bracelet once (prior to September 11), and that he had come in that same day to have it replaced with a new one. He said that the file would only reflect times when calls were made to the house and Ed did not respond. He said that he had nothing in the file for the month of September 1995, which indicated that Ed had remained home as required, and that no violations had occurred.
At the close of rebuttal, Chavez renewed all motions, including the motion to suppress his statements, the motion for judgment of acquittal (particularly reiterating that the State had failed to prove the corpus delicti of the charge of sexual battery), and the motion for mistrial, based upon alleged cumulative errors. These motions were denied. The jury was instructed, and, following deliberation, entered verdicts of “guilty” on all of the counts charged. Following the penalty phase of the trial, the jury recommended death by a vote of twelve to zero.
UPDATE: Juan Chazvez was executed for the rape and murder of 9 year old Jimmy Ryce in 1995. Chavez did not make a verbal final statement, but submitted a written statement that read in part: "I doubt there there is anything I can say that would satisfy everybody, even less those who see in me nothing more than someone deserving of punishment." Jimmy's father Don, who is now 70, witnessed the execution along with his son Ted. They told reporters outside the prison that the execution closes a long, painful chapter and hopefully sends a powerful message to other would-be child abductors. "Don't kill the child. Because if you do, people will not forget, they will not forgive. We will hunt you down and we will put you to death," Don Ryce said. Jimmy Ryce's death led to changes in the legal system, and the way police respond to missing child cases. Don Ryce said recently that he and his wife became determined to turn their son's horrific slaying into something positive, in part because they felt they owed something to all the people who tried to help find him. They also refused to wallow in misery. "You've got to do something or you do nothing. That was just not the way we wanted to live the rest of our lives," he said.
The Ryces created the Jimmy Ryce Center for Victims of Predatory Abduction, a nonprofit organization based in Vero Beach that works to increase public awareness and education about sexual predators, provides counseling for parents of victims and helps train law enforcement agencies in ways to respond to missing children cases. The organization has also provided, free of charge, more than 400 bloodhounds to police departments around the country and abroad. Ryce said if police searching for Jimmy had bloodhounds they might have found him in time. Another accomplishment was 1998 passage in Florida of the Jimmy Ryce Act, versions of which have also been adopted in other states. Under the law, sexual predators found to be still highly dangerous can be detained through civil commitment even after they have served their prison sentences. Such people must prove they have been rehabilitated before they can be released. Chavez had no criminal record, so the law would not have affected him.
Florida Commission on Capital Cases
CHAVEZ, Juan Carlos (H/M)
DC # M18034
DOB: 03/16/67
Date of Offense: 09/11/95
Date of Sentence: 11/23/98
Eleventh Judicial Circuit, Dade County, Case #95-037867
Change of Venue from Orange County, Case #98-11700
Sentencing Judge: The Honorable Marc Schumacher
Attorney, Criminal Trial: Edward Koch – Assistant Public Defender
Attorney, Direct Appeal: R. Harper, S. Whittington, & J. Savitz – Private
Attorney, Collateral Appeals: Andrea Norgard – Registry
Circumstances of Offense:
Juan Carlos Chavez was convicted and sentenced to death for the kidnapping, sexual assault and murder of nine-year-old Samuel James “Jimmy” Ryce. Jimmy Ryce disappeared on 09/11/95, after being dropped off by the school bus in Redlands, Florida. Extensive search efforts failed to locate the boy.
Juan Carlos Chavez worked as a handyman for the Scheinhaus family and lived in a trailer located on their property. Chavez also cared for the Scheinhaus’ horses, which were boarded on a farm owned by David Santana. In late August or early September of 1995, Susan Scheinhaus reported to police that several items were missing from her residence, including a handgun and some jewelry. Scheinhaus suspected Chavez, but had no evidence to prove her suspicions. On 12/05/95, Scheinhaus, aided by a locksmith, entered the trailer inhabited by Chavez. Scheinhaus spotted the handgun in plain view. After further examination of the trailer, Scheinhaus found a book bag belonging to Jimmy Ryce. Several items in the book bag, including books and papers had his name written on them. Scheinhaus notified the FBI. On 12/06/95, Chavez was located and taken to the Metro-Dade Police Station for questioning.
During a 55-hour interrogation and having been advised of his rights, Chavez voluntarily and knowingly admitted to abducting, sexually assaulting and killing Jimmy Ryce. Chavez gave a detailed account of the abduction. Chavez confessed that he kidnapped Jimmy at gunpoint and then took him to the horse farm where he sexually assaulted and later shot the boy. Chavez transported the body to the Scheinhaus residence. There he dismembered the boy’s body and hid the parts by cementing them in three large planters. Chavez had no prior incarceration history in the state of Florida.
Trial Summary:
12/06/95 The defendant was arrested.
12/20/95 The defendant was indicted as follows: Count I: First-Degree Murder Count II: Sexual Assault / Victim Under 12 Count III: Kidnapping with a Weapon
09/18/98 The defendant was found guilty on all counts charged in the indictment.
10/29/98 The jury unanimously recommended the death penalty.
11/23/98 The defendant was sentenced as follows: Count I: First-Degree Murder - Death Count II: Sexual Assault / Victim Under 12 - Life Count III: Kidnapping with a Weapon - Life
Appeal Summary:
Florida Supreme Court - Direct Appeal
FSC #94,586
832 So. 2d 730
12/28/98 Appeal filed.
05/30/02 FSC affirmed the convictions and sentence of death.
11/21/02 Rehearing denied in light of revised opinion.
12/20/02 Mandate issued.
United States Supreme Court - Petition for Writ of Certiorari
USSC #02-10297
539 U.S. 947
04/23/03 Petition filed.
06/23/03 Petition denied.
Circuit Court – 3.851 Motion
CC# 95-37867
07/09/04 Motion filed.
05/05/05 Motion amended.
01/10/07 Evidentiary Hearing held.
03/08/07 CC denied motion.
Florida Supreme Court – 3.851 Motion Appeal
FSC# 07-952
05/23/07 Appeal filed.
06/25/09 Conviction and sentence affirmed.
07/22/09 Mandate issued.
Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 08-970
05/27/08 Petition filed.
06/25/09 Petition denied.
United States Supreme Court – Petition for Writ of Certiorari
USSC# 09-6156
130 S.Ct. 501
08/28/09 Petition filed.
11/02/09 Petition denied.
United States District Court, Southern District – Petition for Writ of Habeas Corpus
USDC# 10-20399
02/09/10 Petition filed.
07/12/10 Petition dismissed.
08/13/10 Motion for Certificate of Appealability filed.
10/02/10 Motion granted.
United States Court of Appeals, Eleventh Circuit – Habeas Appeal
USDC# 10-13840 (Pending)
08/10/10 Appeal filed.
Case Information: On 12/28/98, Chavez filed a Direct Appeal in the Florida Supreme Court. In that appeal, he argued that the police did not have probable cause for his arrest, that the trial court erred in denying his motion to suppress his confession (for numerous reasons) and that the deprivation of his right to counsel by delaying his initial appearance constituted reversible error. Chavez also contended that he was denied a fair trial when, due to a change of venue, the trial court reversed an earlier order prohibiting photography of the jurors in the courtroom. Chavez argued that the State failed to prove corpus delecti[1] on the Sexual Assault charge and that the trial court erred in its consideration and application of aggravating circumstances. The Florida Supreme Court affirmed the convictions and sentence of death on 05/30/02 and issued a revised opinion on 11/21/02.
Chavez filed a Petition for Writ of Certiorari in the United States Supreme Court on 04/23/03, which was denied on 06/23/03.
Chavez filed a 3.851 Motion in the Circuit Court on 07/09/04 and amended the motion on 05/05/05. On 01/10/07, and Evidentiary Hearing was held, and on 03/08/07, the Circuit Court denied the motion.
Chavez filed a 3.851 Motion Appeal in the Florida Supreme Court on 05/23/07, which was denied on 06/25/09. A mandate was issued on 07/22/09.
Chavez filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 05/27/08, which was denied on 06/25/09.
Chavez filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/24/09, which was denied on 11/02/09.
Chavez filed a Petition for Writ of Habeas Corpus in the United States District Court, Southern District on 02/09/10, which was dismissed on 07/12/10.
Chavez filed a Motion for Certificate of Appealabilty in the United States District Court on 08/13/10, which was granted on 10/02/10.
Chavez filed a Habeas Appeal in the United States Circuit Court on 8/10/10. That appeal is pending.
Information 12/16/10 – updated – jjk
Chavez v. State, 832 So.2d 730 (Fla. 2002). (Direct Appeal)
Defendant was convicted in a jury trial in the Circuit Court, Dade County, Marc Schumacher, J., of first-degree murder, kidnapping, and sexual battery of nine-year-old victim, and was sentenced to death. Defendant appealed. The Supreme Court held that: (1) police had probable cause to arrest; (2) confession was voluntary despite 54 hours of police custody; (3) lack of prompt first appearance and probable cause determination did not require suppression of confession; (4) allowing photography of jurors in courtroom did not violate right to a fair trial; (5) State submitted sufficient proof of corpus delicti of sexual battery charge; (6) evidence supported finding of death penalty aggravators; and (7) death penalty was appropriate and proportional. Affirmed. Anstead, C.J., concurred in result only as to conviction, and concurred as to sentence. Shaw and Pariente, JJ., concurred in result only.
PER CURIAM.
The opinion issued in this case on May 30, 2002, is withdrawn, and the following revised opinion is substituted in its place. We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Juan Carlos Chavez. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the judgments and sentences under review.
MATERIAL FACTS
Jimmy Ryce's Disappearance
On the afternoon of September 11, 1995, nine-year-old Samuel James (“Jimmy”) Ryce disappeared after having been dropped off from his school bus at approximately 3:07 p.m. at a bus stop near his home in the Redlands, a rural area of south Miami Dade County. An extensive and well-publicized search of the area followed, but failed to locate the child. At that time, the defendant, Juan Carlos Chavez, was living in a trailer on property owned by Susan Scheinhaus. Chavez worked as a handyman for the Scheinhaus family, and was permitted to use their Ford pickup truck to run errands or do other work for the family. As part of his duties, Chavez frequently cared for horses owned by the Scheinhaus family, but housed on property owned by David Santana, which contained an avocado grove. There was also a trailer on that property, referred to throughout Chavez's trial as the “avocado grove trailer” or the “horse-farm trailer.” FN1. The parties did not dispute that Jimmy Ryce died there, and the State introduced evidence that a spot of the child's blood was found on the floor of the trailer.
In August or September of 1995, Mrs. Scheinhaus reported to the police several times that items (including a handgun and some jewelry) were missing from her residence. Although she suspected Chavez, she lacked evidence of his culpability. She testified at trial that, in November, she had decided to obtain the evidence required to pursue her claim. With the help of a locksmith, on December 5, 1995, while Chavez was away for the day, Mrs. Scheinhaus and her son, Edward Scheinhaus (“Ed”), entered the trailer located on her property which Chavez occupied. She found the handgun—which she later identified in court as a gun she had purchased in April of 1989—in plain view on a counter opposite the trailer door. As Mrs. Scheinhaus continued to look inside the trailer, she discovered, in the closet area, a book bag which was partially open. Looking inside the bag, she saw papers and books. The work appeared to be in a child's handwriting, and she noticed the name “Jimmy Ryce.” She also observed this name on one of the books.FN2 When Mrs. Scheinhaus asked her son to look at the items, he also recognized the child's name. FN2. Jimmy Ryce's name appeared on several notebooks and a science book found in the backpack. As a result of this discovery, Mrs. Scheinhaus notified the FBI. When Chavez returned to the Scheinhaus residence at about 7:15 on the evening of December 6, armed FBI agents quickly surrounded and secured him. After being patted down, he agreed to go with Metro Dade Police officers, who were also present, to the station for questioning.
Chavez's Detention
Chavez was involved in a questioning process that was punctuated by regular refreshment, food, bathroom breaks and a rest period, and interspersed with two outings returning to the Scheinhaus and Santana properties in southern Miami Dade County. Although Chavez was first brought to the police station on the night of December 6, he did not sleep until shortly after midnight on December 7.FN3 Detective Luis Estopinan, who was bilingual, conducted most of the questioning, although other officers also participated. Various police detectives, an FBI agent, Mrs. Scheinhaus and an independent interpreter all had opportunities to observe Chavez at various times throughout this period. Chavez was consistently described as alert and articulate during this time, and no one observed police detectives mistreating Chavez in any way throughout the period of questioning. He received repeated warnings and instructions in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and indicated that he fully understood them on four occasions during the period of interrogation.
FN3. The record reflects that, on the evening of December 7, Chavez commenced making a written statement, which he concluded at about 12:24 a.m. on December 8. He then received a restroom break and was offered a pillow and blanket, which he declined. Chavez returned to the interview room, where, without interruption by any interrogation, he slept or rested with the lights out until about 7:30 a.m. At that time, Chavez was awakened, provided with another restroom break, and fed breakfast before traveling to the horse farm property and the Scheinhaus property in the southern portion of Miami Dade County, accompanied by the police officers, at about 9:25 a.m.
Over the course of the interrogation, and after having been repeatedly advised of his Miranda rights and knowingly waiving them, Chavez provided several versions of his involvement in Jimmy's disappearance. As law enforcement officers engaged in a contemporaneous investigation of Chavez's changing narratives, he agreed to accompany officers on two occasions to visit the horse farm property and the Scheinhaus property, where he showed them the location of the events he had recounted had transpired. On those occasions, Chavez was asked to reveal where the boy's remains were located, to permit Jimmy's family to have closure. After the physical evidence resulting from this contemporaneous investigation totally discredited each version of events which Chavez had initially proposed, Chavez agreed to tell the truth. However, Chavez explained that, before he would disclose the location of Jimmy's remains, he wanted the officers to guarantee that he would receive the death penalty. Estopinan advised Chavez that he could not guarantee that the death penalty would be imposed. However, Chavez continued to talk, asserting that the events would not have happened had he not been sexually battered by a relative in Cuba. Estopinan told Chavez that he “felt that it was time for him to be truthful and tell us what really happened to Jimmy, and ... went back and began to ask him about Jimmy and where Jimmy was located. We wanted to find Jimmy.” A break followed this inquiry and then Chavez reiterated to Sergeant Jimenez the most recent account which he had given Estopinan. Chavez then went to the restroom for another break and, upon returning to the interview room, informed the officers that they were now going to hear the truth: “[W]hat do you want to know? I'll tell you what happened to Jimmy Ryce.” Chavez proceeded to admit to Estopinan and Jimenez that he had abducted Jimmy at gunpoint, traveled to the horse ranch, and sexually assaulted Jimmy before finally shooting him. Estopinan explained that the officers would need details from Chavez,FN4 and requested permission to take a sworn statement. Chavez agreed to continue the questioning, and Estopinan and Jimenez “began to get details” about what had happened to Jimmy Ryce. At trial, Estopinan testified regarding the final version of Chavez's statement.
FN4. Estopinan testified: “During what's called the preinterview such as in this case, what we do is we receive the information from the person we are speaking to and we document the information on to a note pad. Eventually we do our report which is consistent with the notes.”
Chavez said that he had observed young children playing in water on his way home from Home Depot at approximately 3 p.m. Some of the boys were wearing just their underwear, and “as he saw the young boys wearing just the[ir] underwear, he took an interest in them.” After observing the children, Chavez drove off, but returned a short while later, because he “still had a mental picture of what happened, meaning that he saw the young boys in their underwear by the canal bank, and decided that he wanted to take another look.” Estopinan testified: And while this is occurring, he was driving on the avenue, he sees a young—he sees a figure of a person, and then he realizes it was a young boy that he saw. At the same time he sees the young boy who later turns out to be Jimmy Ryce, again he's thinking about the young boys who are at the canal bank. .... He said at this point he's feeling something sexual and he wants to—he is—what he's doing, he's doing picture—what he explains to me is that he has a mental picture in his mind of the young boys in the canal with their underwear and he's also picturing Jimmy Ryce the young boy, and what he does as he's driving the pickup truck in the opposite direction of Jimmy Ryce, he said at the time he had with him the Scheinhaus revolver, the Taurus, .38 caliber. And he said at this time Jimmy is walking on the left side of the road, and what he did is driving on the opposite side, he begins to drive on the opposite side of the traffic and drives and stops right in front of Jimmy Ryce causing him to stop. The minute that Jimmy stops, he stops the truck, he gets out of the truck with the gun in his hand and tells Jimmy at gunpoint, do you want to die. And Jimmy made a comment to him, no. And he told Jimmy in English to get inside the truck. And Jimmy responds by getting into the truck via the driver's side door. Once Jimmy is inside the pickup truck, he tells him to—Jimmy removes his backpack and puts it between his legs and he Chavez gets into the truck with Jimmy, still holding the handgun. It's at that point he takes the revolver and he places it underneath his lap and tells Jimmy to put his head down so Jimmy wouldn't be seen by anyone. And at that point he tells me that he drives back to the horse ranch where the trailer was located. ....
He told me that Jimmy left his backpack inside the pickup truck. Once they both exit the pickup truck, both him and Jimmy at his direction they go inside the trailer that's located inside the horse ranch. He goes on to explain that once inside the trailer he tells Jimmy to sit down on the bed. Jimmy complies. And that he sits on a black office chair close to Jimmy by the entrance and he begins to talk to Jimmy, he notices that Jimmy is, he's nervous and he's scared and Jimmy begins sobbing. And while this is occurring, Jimmy began to ask him, why did you take me? And Chavez explains to him, what he does, he begins to ask, he wants Jimmy to answer his own questions, well, why do you think I took you, things to that effect. He wants Jimmy to answer his own questions. He goes on to explain that at this point he feels like doing something sexual and that he tells Jimmy to remove his clothing. He said Jimmy complied by removing his shirt, his shorts, his sneakers and he wasn't sure if Jimmy was wearing socks or not. And then Jimmy remains in his underwear only, his white underwear he believes. He goes on to tell me that at this point he gets up and he tells Jimmy to also go ahead and remove his underwear. Jimmy complies and removed his underwear. And then he tells Jimmy to lay on the bed in the trailer and Jimmy complies. Jimmy lays on his stomach on the bed. Chavez tells me that he went into the bathroom area of the trailer looking for something. And I asked him, what are you looking for. He said, I'll explain. And he told me I was looking for something like a lubricant. And then he goes into the bathroom and he finds a see through plastic container, he said, with some blue lettering on it. And then he took a sample of the contents of the container to see if it would burn, and when it didn't, he came back to where Jimmy was and he placed this, the substance or the lubricant on to Jimmy's rectum, he said, and as he was placing the lubricant on Jimmy's rectum, Jimmy is asking what are you doing. And he mentioned to Jimmy that what do you think is going to happen, things to that effect. He unzipped his pants, he exposed his penis and he inserted his penis into Jimmy's rectum. .... He told me right after he inserted his penis in Jimmy's rectum, he again has a mental picture of the young boys in their underwear which he had seen at the canal and he said that he quickly ejaculated, and once he ejaculated inside Jimmy, he said he removed himself. FN5. Forensic serologist Theresa Merritt of the Metro Dade Police Department testified that she received some items for examination on December 8, 1995. Merritt tested Jimmy's shorts for the presence of semen. The shorts “had a very bad odor, and they were very obviously biologically contaminated.” “When an item is badly decomposed, the test we conduct for the presence of semen—we're looking for what is called an enzyme. This is a protein substance that doesn't last very long. And under circumstances like that, I would not really expect to find it.” Merrit found no semen on the decomposed shorts. Chavez said that he and Jimmy then dressed and left in the truck, indicating that he had intended to leave Jimmy in the area where he had picked him up. However, upon nearing the area where he had abducted Jimmy, Chavez noticed that police cars were present. Believing “that someone had reported Jimmy missing and they were looking for Jimmy,” Chavez kept Jimmy's head down in the truck and returned to the horse farm. Estopinan testified regarding what transpired when Chavez and Jimmy returned to the horse farm: He said once inside the trailer, Jimmy is trembling and crying. And Jimmy asked, what's going to happen to me. Are you going to kill me. He noticed that Jimmy was very frightened. And what he does, he begins to speak to Jimmy in order to calm him down.
Chavez told Estopinan that he tried to calm Jimmy down by asking him questions.FN6 He then explained how he killed Jimmy: Well, the next thing Chavez mentions happened is he heard a helicopter fly over the horse ranch. It was his opinion he believed the helicopter belonged to the police, that the police were searching for Jimmy. When he heard the helicopter flying over him, he went ahead and held Jimmy close by to him so Jimmy wouldn't go anywhere, and eventually he heard the chopper several times flying over him, and at one point he said he got up and began looking out the window to see if he could see the chopper, the helicopter that is. And while he was looking for the helicopter, Jimmy is still close to the front entrance of the trailer. He said that Jimmy made a dash for the door, Jimmy ran for the door trying to escape. He said that he tried to reach up to Jimmy, but he got tangled on the floor of the bathroom and at that point he said he took out the revolver belonging to Mrs. Scheinhaus, he pointed the handgun in the direction of Jimmy, fired one time hitting him.FN7
FN6. The responses which Chavez indicated Jimmy made contained factual information consistent with facts to which Mrs. Ryce testified at trial. FN7. As Chavez explained [transcribed statement]: “It was the only way that I had in order—I'm sorry. It was the only way that I had in order to avoid—to prevent him from going out.” Chavez stated that Jimmy “screamed, apparently—or, well, certainly—because of the impact of the bullet.”
He said that Jimmy collapsed right by the door and collapsed to the right by the door inside the trailer. He said after he shot Jimmy, he came up to Jimmy, he turned Jimmy around and held Jimmy in his arms and Jimmy took one last breath, he expressed it, and he said that was the last thing Jimmy did. Chavez described that, to dispose of Jimmy's body, he found a metal barrel inside the trailer at the horse farm, and placed Jimmy's body inside the barrel. He transported the barrel containing the body from the horse farm to the Scheinhaus residence, where he removed the barrel and placed it in Chavez's disabled van, which was parked in the stable area. Chavez removed Jimmy's book bag from the pickup and carried it with him to his own trailer. That night, Chavez looked at some of the note pads inside Jimmy's book bag. Chavez noticed blood on his own clothing and eventually destroyed the clothes. During the night and into the next morning, “all he could think about was what he was going to do with Jimmy's body.” Two or three days later, Chavez attempted to use a backhoe on the Scheinhaus property to dig a hole in which to bury Jimmy, but the machine did not operate properly. Chavez remained concerned, particularly when he noticed that the lid of the barrel which contained Jimmy's body had come off. Chavez pulled Jimmy's body from the barrel onto a piece of plywood, and, from there, his remains fell to the ground. “And he said at that point he went ahead and began to dismember Jimmy's body with the use of a tool.” Chavez described the tool he used to dismember Jimmy's body, and even drew a picture of the implement. He explained that it took him a while to dismember Jimmy's body, as he was becoming sick and vomiting. “[B]ut then he completes it and he places three of Jimmy's parts [into] these three planters. And once he fills these planters with Jimmy's remains, he goes ahead, goes into the stable area of the stable where the building is located and he locates some cement bags. With those cement bags he seals the tops of the planters with cement.” FN8
FN8. Ms. Scheinhaus testified that Chavez had prepared planters with concrete in them that were placed on her property. She assumed that this was done to keep the horses from eating her hedges. FN9. Chavez later testified at trial that he had read the Miranda warnings, but had signed the consent to search without reading it.
The oral interview concluded at 10:50 p.m. on December 8. While an interpreter and a stenographer were being obtained to record a formal statement, Chavez remained in the interview room, and did not further converse with Estopinan until the interpreter arrived. Then, at 11:45 p.m., Chavez began to provide a formal statement. Estopinan, Sergeant Jimenez, and the court reporter were present as the statement was obtained. After some preliminary questions, Chavez was again advised of his Miranda rights. At this time, Chavez confirmed that he had voluntarily agreed to waive his first court appearance and that he had given the officers consent to search his property.FN9 When the statement was completed, each page of the statement was reviewed, and Chavez made any corrections he desired. He acknowledged in the statement that he was making the transcribed statement voluntarily; that no one had threatened or coerced him into making the statement; and that he had been treated well. Estopinan testified that, at the time he made his sworn statement, Chavez was “polite, cooperative and he was alert.” Marilu Balbis testified that she was the professional interpreter providing services during Chavez's sworn statement. Ms. Balbis was an independent contractor who had been an interpreter and translator for twelve years. The confession was unusually long, and Ms. Balbis had the opportunity to closely observe Chavez's demeanor.FN10 Chavez did not appear sleepy, and was alert.FN11 At no point did the detectives give Chavez any answers.
FN10. She observed: “He seemed—he seemed fine. He was calm. He spoke very clearly, very—he expressed himself very clearly. He spoke very clearly. He spoke—he actually spoke very well. That's another thing that I always remembered. He expressed himself in very correct Spanish. He was calm. He spoke slowly.” FN11. The transcription of Chavez's final confession was completed after he had been with the police officers for a period of about fifty-two hours (including numerous breaks, Miranda warnings, at least two trips to the southern part of Miami Dade County where he walked freely around the property investigated, and one period of sleep). Defense counsel objected to the statements based on grounds stated in the pretrial motion to suppress. Chavez also objected to the statements on corpus delicti grounds.
Once the confession was finished, Ms. Balbis read each page, word by word, to Chavez to make sure that it was typed correctly. Chavez approved every page by initialing each page at the bottom. Ms. Balbis indicated that the police officers treated Chavez with courtesy, and that she did not observe them threaten or raise their voices toward Chavez. FN12. FBI Special Agent Russell testified that he was present when Metro Dade officers questioned Chavez. He stated that he did not observe Chavez mistreated in any way.
Chavez's Trial and Sentencing
Officer Michael Byrd recovered the loaded handgun from Chavez's trailer. Byrd also found a poster in Chavez's trailer bearing the likeness of Jimmy Ryce, which he processed as evidence. A box of bullets containing live ammunition, and one spent shell casing, were also found in the trailer. Crime scene technician Elvey Melgarejo testified that, on December 8, 1995, he helped search and process a trailer on a horse/avocado farm. He searched the trailer and found “a tube of JR water-based lubricant” on a shelf inside the trailer. Melgarejo collected a sofa cushion and part of the wood floor of the trailer just inside the front door. These items were packaged for transmittal to serology for processing. Melgarejo also traveled to the Scheinhaus property, where he noticed the three concrete-filled planters and became suspicious that they might contain a cadaver.
Fingerprint technician William Miller identified Chavez's fingerprint on the handgun recovered from his trailer. To determine whether fingerprints were present on the handgun, he placed it in a laboratory chamber in which super glue fumes were released, surrounding the handgun and adhering to the residue and oils left by any fingerprints. As a result, a fingerprint matching that of Chavez was found on the firearm. Miller testified that there were “ten points of identification throughout this fingerprint, which is only common to Chavez. It's an absolute and positive identification that his left thumb print made on the weapon.” On December 8, 1995, Miller also examined the books and notebooks found inside the book bag belonging to Jimmy Ryce.FN13 He found Chavez's fingerprint on the front of one notebook found in the book bag. The fingerprint located on the interior of the notebook cover was found to “have sixteen points of identification, a positive identification, based on the left thumb print of Mr. Juan Carlos Chavez against the print which was developed on the inside cover.” Another print of value was located on the textbook entitled Journeys in Science. He found “this particular print of value from this area to be made by the right middle fingerprint of Chavez. I had nine points of identification.” When compared to the prints of Mrs. Scheinhaus and Edward Scheinhaus, the prints on the book bag contents did not match. FN13. Detective McColman testified that he locked the book bag in Sergeant Smith's desk for approximately two hours. However, the book bag and its contents were never brought into contact with Chavez, or placed in the same room with him.
Forensic serologist Theresa Merritt of the Metro Dade Police Department testified that she received items for examination on December 8, 1995. She was dispatched to the horse farm to assist crime scene personnel in attempting to determine whether blood was present. Merritt tested a twin-size mattress from the trailer, a cushion present on the bench in the trailer and a cut-out portion of the threshold area from the floor of the trailer. A scraping from the floor area produced a positive result for the presence of blood. Another sample, from a cushion in the trailer, yielded blood scrapings. (State's Exhibit 135.) Anita Mathews, assistant director of the forensic identity testing laboratory for “LabCorp” of North Carolina, testified that she was “responsible for doing interpretation on the results of the testing that the technologists conduct.” Mathews testified that they were not able to obtain a sufficient quantity or quality of genetic material from samples collected from the body of Jimmy Ryce for testing. However, DNA from the oral swab samples taken from his parents, Don and Claudine Ryce, was compared to the blood found on the floor of the trailer. This comparison produced the conclusion that the blood on the floor was extremely likely to have come from a child of Don and Claudine Ryce. FN14 Two other blood samples taken from the floor of the trailer carried the same genetic characteristics. Another blood sample, taken from the cushion found in the trailer, also was consistent with having come from the biological child of the Ryces.FN15
FN14. Mathews testified: In the Caucasian population, the parentage index is 2,350,059,902 to 1. And basically what that number means is that it's just over two billion times more likely that the blood sample on the floor originated from a child of Don and Claudine Ryce than from some random couple in the population, in the Caucasian population. Expressed another way, the probability of parentage was “99.99 percent.” FN15. Over defense objection, the State introduced into evidence a bloodstained mattress found in the avocado grove trailer. (State's Exhibit 136.) Testing showed that the blood did not belong to either Jimmy Ryce or Chavez. The judge instructed the jury that the mattress was being admitted “for the limited purpose of showing that the stain on that exhibit is not related to this case, and specifically that the source of that stain is unknown, and that Samuel James Ryce and Chavez have been excluded as the source of that stain.”
Dr. Roger Mittleman, Chief Medical Examiner for the Dade Medical Examiner's Department, testified that, on December 9, he conducted an examination of the contents of the three planters.FN16 The cement in each planter encased the remains of what appeared to be a young boy.FN17 The remnants of a cement bag were in at least one of the planters. FN16. Photographs of the planters and their contents were received into evidence and displayed to the jury. (State's Exhibits 103–107.) FN17. The planters were marked “A,” “B” and “C.” The skull, the remains of the left lower extremity and a left sneaker were found in planter “A.” In planter “B,” the right lower extremity was found with attached pelvis and clothing. “There was also a portion of vertebral column and also portions of pelvis as detached from the body.” In planter “C,” they found “the chest with the arms attached and the chest was clad in a T-shirt.”
Dr. Mittleman described the clothing found on Jimmy's body: “It was dressed in this T-shirt and had on jeans and underwear. There was one sneaker on; one sneaker was off. There were socks.” The doctor then corrected himself, and stated that only one sock was found on the body.FN18 The doctor testified that a body expands as it decomposes due to the breakdown of material and biological processes, causing gases to expand. This process could cause a body placed in a barrel to expand to the point that a lid would be forced off or open. FN18. In addition to showing that only one shoe was on, and one sock was removed, the photographs revealed that Jimmy's pants were unzipped.
The remains were significantly decomposed.FN19 Using dental records from Jimmy's family dentist, a forensic dentist testified that the comparison with the jaw and teeth of the body was so strong that the “skeletal remains” were “positively identified as that of Jimmy Ryce.” An X–Ray of the body cavity revealed a flattened projectile jacket that lodged in the area of the heart and “great vessels.” The bullet entered at the point where the right sixth rib is located, went upward in the body, through the lung and the heart, and exited from the upper left chest. Based upon the trajectory of the bullet, the gun would have been pointing slightly upward and below the individual who was shot. However, there was no evidence on the body which would demonstrate how far away the gun was when it was fired.FN20
FN19. Chavez objected to the gruesome photographs as cumulative and unduly prejudicial. The doctor's photographs showed the heart exposed by the doctor, a metal probe which had been run through the body to demonstrate the actual path of the bullet, and pictures of a bush hook (a heavy chopping instrument, like an axe or machete, with a thicker blade) shown alongside severed body parts. This objection was overruled. FN20. Answering a hypothetical question, the medical examiner testified that the gunshot pathway observed on Jimmy's remains was consistent with a child who is fifty-five inches tall having been shot by someone who was falling or who had fallen and was shooting up towards the victim.
On December 20, 1995, Detective McColman had transported a tool known as a “bush hook,” which had previously been impounded, to the medical examiner's office. Dr. Mittleman was asked to examine the bush hook to determine if its cutting characteristics were consistent with the injuries inflicted on Jimmy's body. The medical examiner noted that a number of the injuries inflicted on the body during dismemberment were consistent with having been made by the bush hook.FN21 However, he also testified that it was possible that more than one instrument had been used. FN21. Forensic serologist Theresa Merritt of the Metro–Dade Police Department examined the bush hook, but found no evidence of blood or tissue on it.
Firearms examiner Thomas Quirk of the Metro–Dade Police Department Crime Laboratory testified that a .38 caliber Taurus model 85 revolver (State's Exhibit 23) was submitted for his examination after it had been processed by the fingerprint section. He also received one aluminum jacket from a projectile recovered from the body of the victim, and two .38 caliber casings—a projectile identified as having come from a red bullet box (State's Exhibit 36) and a casing that had been fired from a firearm (State's Exhibit 35). The two empty .38 caliber shell casings found in Chavez's trailer were fired from the .38 recovered from Chavez's trailer. Quirk testified that the manufacture of the barrel and the rifling process provide microscopic differences which are transferred to the bullet during firing and which repeat, similar to a fingerprint. Also, the projectile jacket recovered by the medical examiner and the lead core (the fatal bullet) were positively identified as having been fired by the gun recovered from Chavez's trailer: “My conclusion is that this bullet was fired in this weapon to the exclusion of all other weapons in the world. This is the gun that fired this bullet.”
After the State rested, Chavez moved for judgment of acquittal, which was denied. Defense counsel specifically argued the State's failure to establish a corpus delicti for the crime of sexual battery. The defense then began the presentation of its case. During the examination of Ed Scheinhaus, Ed explained that he had been under house arrest at the time the kidnaping occurred. He worked from 10 p.m. to 6 a.m., and was required to stay at home at all other times, unless he arranged in advance to be away from his house. He had an ankle device, and would be called each day at random times (as controlled by a computer) throughout the period he was confined to his home. When called, he would have to “report in” by placing the ankle bracelet next to a device installed in his home. Chavez also testified in his own defense, stating that he had belonged to a counter-revolutionary group in Cuba.FN22 He gave details of his imprisonment (for attempting to escape and for stealing military property) in Cuba, and his eventual escape from the island. According to his trial testimony,FN23 Chavez encountered Ed Scheinhaus at the horse farm trailer after Jimmy had already been killed, and helped Ed to dispose of the boy's body.FN24
FN22. United States Immigration and Naturalization Service documents reflected that Chavez never disclosed his alleged political activities to authorities upon his arrival in the United States. Chavez's childhood friend, Pedro Caballo, also testified (during the penalty phase) that Chavez never talked about politics, complained about the Cuban government, or expressed dissatisfaction with it. FN23. Chavez testified that there was a key to the horse ranch which hung in the Scheinhauses' kitchen. He stated that, on September 11, 1995, he had come to the horse ranch, and seen Ed Scheinhaus's car parked there. He heard a sound—not like a gun shot, but like a door closing—coming from the trailer. He went in to find the boy's body on the floor and Ed in a panic. Chavez saw that the boy was dead, and wanted Ed to go to the police or the hospital. Ed explained that it was an accident, that the boy had wanted to escape, and that Ed had gotten tangled up in clothes by the bathroom, or had fallen, and had shot the boy to prevent his leaving. Chavez did not know why Ed had the boy. After Ed prevailed upon Chavez to help him put the body into the truck, Ed drove off in the truck. Chavez assumed that he was going to report the matter to the authorities. FN24. Chavez's trial testimony was rife with inconsistencies, both with his own prior statements, and with evidence properly admitted at trial. He had earlier told Diaz that he had removed the gun from a kitchen cabinet in Mrs. Scheinhaus's residence, and had it with her permission, because he believed it was his duty to protect the property. At trial, he claimed to have used the gun for target practice while it was in Danny Frometa's possession. Mrs. Scheinhaus testified, however, that the last time she saw her handgun, it was in her underwear drawer.
Chavez got into Ed's Acura and pushed the seat back to accommodate his height (he is taller than Ed). At that time, he saw the gun under the seat, and handled it. He had used this gun for target practice before, and kept bullets which could be used with the gun in his own trailer. Those .38 bullets had been found during the aftermath of Hurricane Andrew, when various belongings from the home were being salvaged. Although Chavez did not keep the gun, he thought he could use the bullets for some future target practice, when permitted to use the gun. Chavez drove to the Scheinhaus residence, and was surprised to find Ed. Ed told him that he had to help dispose of the body, or Ed would tell authorities that Chavez had already helped, and he would be deported. They put the body into Chavez's disabled van. A few days later, without explanation, Ed told Chavez that he had taken care of everything. Chavez suspected that Ed had put the body into the planters. Further, the medical examiner's testimony reflected that the victim would have died almost instantaneously from the gunshot wound, yet Chavez did not testify that he saw Ed outside the trailer as he drove up to it, or that Ed had the gun in his hands when Chavez entered the trailer, or at any other time during the period when Chavez was purportedly working with Ed to help dispose of the victim's body. Rather, he testified that Ed was holding rags, which the two of them used to cover the body prior to loading it into the truck; and that, immediately thereafter, Ed sped off in the truck. While Chavez claimed to have found the gun later under the driver's seat of the Acura, there is no accounting for how the gun got from the trailer to the car, nor any opportunity, under Chavez's trial version of the facts, for Ed to have placed it there after Jimmy was instantaneously killed. Lastly, the testimony of both Ed and his parole officer reflected that Ed was under house arrest on the day that Jimmy died, reporting in electronically on a regular basis.
Chavez testified that, after he was brought to police headquarters in connection with Jimmy's disappearance, he was mistreated. He stated that, when he was placed in the police car, he was told, “Don't do anything stupid or we'll shoot you. We're going to kill you.” FN25 He complained that his watch and beeper were taken away from him, and returned only after he gave his final confession.FN26 Chavez stated that, when they were interrogating him, he did not know what date or time it was.FN27 He said that he was not permitted to sleep, and no one ever offered him a pillow or a blanket. Chavez also claimed that the officers brought the book bag into the interrogation room, and asked Chavez to handle it and look through its contents, which he did. According to Chavez, the police goaded him into making up lies.FN28 He stated that the officers suggested details of his confession, and, to avoid deportation, he did whatever they wanted.FN29
FN25. Chavez recounted additional instances of mistreatment by the police which allegedly occurred during his questioning. He claimed that an officer slapped him on the back of the head with his fingertips, and ignored him when he said he was tired. At one point, when Chavez was sitting on the floor to stretch his legs, Detective Diaz allegedly came into the room, slammed a brown leather jacket on the table, and told Chavez to “put your ass on that fucking chair.” He asserted that the officers told him that they would “get the truth out of me whether it was by pulling my tongue out in pieces or squeezing my nuts, that tougher men than me have gone through that chair, and at the end they were all wound up as shit. He couldn't get anything out of me. He was not about to leave me free on the streets either, that he was going to take the pleasure of sending my ass back to Cuba and that Castro would take care of me. They don't want queers in this country, all those types of things that were going on.” Chavez also claimed that he was given a bagel and a cup of coffee on a poster bearing Jimmy's likeness, and asked if he had “any balls for eating while you're looking at his face.” FN26. This assertion is inconsistent with photographs of Chavez taken when he was later showing the police detectives various places on the Scheinhaus property, which photos reflect that Chavez was wearing his watch at that time. FN27. On cross examination, Chavez was confronted with one of the documents which he had personally signed and dated during questioning. FN28. He stated that, at first, he told the officers a lie, thinking that, when they discovered it was false, they would know that he knew nothing about the case. Chavez claimed that, when he eventually tried to tell Estopinan about Ed Scheinhaus, Estopinan stormed off, unwilling to listen. FN29. Chavez denied being a homosexual. He said that he had made up a story about his homosexual lover “Ivan” being involved in Jimmy's disappearance because the police thought that another person must be involved, and had told him, in their experience, there were only three motives for kidnapping and killing a child: accident, ransom, and sexual molestation.
After the defense rested, the State presented rebuttal testimony. The officers refuted that they had ever threatened Chavez, coerced him, or suggested any part of the confession to him; they denied that they had taken Chavez's watch away or that anyone had hit him; and they testified that he had never mentioned Ed as the perpetrator during the questioning process. FN30 Ed Scheinhaus's parole officer testified that Ed (who is in the pest control business) had his permission to travel to take care of a client on the afternoon on which he had received a speeding ticket, and that Ed had shown the ticket to the parole officer himself, without being asked to do so. He testified that Ed had lost his ankle bracelet once (prior to September 11), and that he had come in that same day to have it replaced with a new one. He said that the file would only reflect times when calls were made to the house and Ed did not respond. He said that he had nothing in the file for the month of September 1995, which indicated that Ed had remained home as required, and that no violations had occurred. FN30. Officer Diaz (who had purportedly slammed his brown leather jacket on the table) testified that he did not, at any time, own a brown leather jacket, and had not slammed one on the table during Chavez's questioning.
At the close of rebuttal, Chavez renewed all motions, including the motion to suppress his statements, the motion for judgment of acquittal (particularly reiterating that the State had failed to prove the corpus delicti of the charge of sexual battery), and the motion for mistrial, based upon alleged cumulative errors. These motions were denied. The jury was instructed, and, following deliberation, entered verdicts of “guilty” on all of the counts charged. Following the penalty phase of the trial, the jury recommended death by a vote of twelve to zero. The trial court followed the jury's recommendation, sentencing Chavez to death for the homicide and to consecutive terms of life imprisonment with three-year mandatory minimum sentences for the convictions of kidnapping and sexual battery. On November 10, 1998, a hearing was conducted pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993). Consistent with Chavez's request, a prepared presentence investigation report was not considered. Sentencing memoranda were filed, and both the State and Chavez relied upon the evidence already presented. A death sentence was imposed on November 23, 1998, and this timely appeal followed.
APPEAL
Chavez raises multiple claims of error on appeal. We address each claim in turn. In so doing, we initially observe that, despite the egregious and inflammatory facts involved in a tragedy such as this case, we must conduct that dispassionate review which our system of law requires to arrive at a just and legally correct result so that there is no miscarriage of justice.
Probable Cause For Chavez's Arrest
First, Chavez asserts that the police did not have probable cause to arrest him in connection with Jimmy Ryce's disappearance. On this record, we conclude that such probable cause did exist. As we stated in Walker v. State, 707 So.2d 300, 312 (Fla.1997): Probable cause for arrest exists where an officer “has reasonable grounds to believe that the suspect has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction.” Blanco v. State, 452 So.2d 520, 523 (Fla.1984). The question of probable cause is viewed from the perspective of a police officer with specialized training and takes into account the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA 1990). See also McCarter v. State, 463 So.2d 546, 548–49 (Fla. 5th DCA 1985) (“Probable cause to arrest exists when facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has [been] or is being committed.”).
Here, the officer's tip came from a reliable, identified citizen informant who was unconnected to the crime which was being investigated. That informant, being Chavez's employer and the owner of the property where Chavez lived, had reason to know that Chavez was not a friend of the Ryce child. Ed Scheinhaus, the informant's son, who was also present when the book bag was found in Chavez's trailer, had indicated his shock to his mother when he realized that the book bag contained items which belonged to Jimmy Ryce. He knew that Chavez had seen the televised requests for assistance related to Jimmy's disappearance, and had expressed an interest in them. The little boy had disappeared months earlier, when he had been expected to return home directly from school, suggesting that he was taken by force. A handgun stolen from Mrs. Scheinhaus was found in the trailer by the informant at the same time the book bag was discovered. Further, the Scheinhaus property where Chavez lived was in the same general vicinity from which the little boy had disappeared. That neighborhood had been saturated with flyers depicting Jimmy, and asking for help. Under these circumstances, it is illogical to suggest that a reasonable person (aware of the massive effort to locate Jimmy) who merely happened to find the book bag would take it to his living quarters without ever reporting the matter to authorities. This cumulative information, known at the time Chavez was apprehended, constituted probable cause to arrest Chavez in connection with the Ryce kidnapping. Cf. Justus v. State, 438 So.2d 358, 363 (Fla.1983) (upholding an arrest without a valid warrant based upon “cumulative information” which provided probable cause in a murder/kidnapping case). The fact that the police maintained that Chavez submitted to them voluntarily, or that the State also argued that there was probable cause to arrest Chavez for stealing property of Mrs. Scheinhaus, does not invalidate Chavez's arrest based upon probable cause in connection with Jimmy Ryce's kidnapping. Cf. State v. Carmody, 553 So.2d 1366, 1367 (Fla. 5th DCA 1989) (observing that the validity of Carmody's arrest was not affected where, despite two valid reasons providing probable cause for the arrest, he was arrested on an unsupportable one); McCarter v. State, 463 So.2d at 549 n. 1 (Fla. 5th DCA 1985) (observing that the “fact that McCarter was arrested for attempted first degree murder rather than attempted kidnapping does not invalidate the search incident to the arrest since the label placed upon an arrest by the arresting officer is not determinative of the question of whether the arrest was legal”).
Chavez's Confession
Chavez argues that the trial court erred in denying his motion to suppress the confession, for a variety of reasons. The trial court's denial of Chavez's motion to suppress is presumed to be correct and must be upheld where, as here, that decision is supported by the record. See Rhodes v. State, 638 So.2d 920, 925 (Fla.1994); Owen v. State, 560 So.2d 207, 211 (Fla.1990).
Length of Interrogation
Chavez claims that his confession must be suppressed as involuntary, because he was subjected to a period of continuous police custody for more than fifty-four hours. The length of interrogation is a significant factor to consider in determining whether Chavez's statements were coerced. In reviewing the denial of his motion to suppress, this Court defers to the trial court on questions of historical fact, but conducts a de novo review of the constitutional issue. See Connor v. State, 803 So.2d 598 (Fla.2001). To establish that a statement is involuntary, there must be a finding of coercive police conduct. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (recognizing that the defendant's own perception of coercion is not the determinative factor). Under the unique circumstances of this case,FN31 the police interrogation conducted here was not so coercive as to render Chavez's confession involuntary. His version of the facts regarding the circumstances of his questioning—which was refuted by testimony both from an independent witness (the translator) and from the officers involved—was apparently disbelieved by the trier of fact. FN31. Although, upon careful review, we conclude that the length of interrogation here did not coerce Chavez's confession, we nonetheless emphasize the importance of providing detainees in the criminal justice system both a probable cause determination and a first appearance within the time constraints established by rules 3.130 and 3.133 of the Florida Rules of Criminal Procedure.
Although Chavez was questioned over the course of several days, he was provided with food, drink, and cigarettes (as requested) at appropriate times, and permitted to have frequent breaks. His interrogation was also interspersed with time away from the police facilities for visits to various properties, a six-hour rest period (where Chavez was offered a blanket and a pillow), and times when he was left alone for quiet reflection. He was repeatedly given Miranda warnings, in Spanish, and indicated each time that he fully understood them. Consequently, the trial court did not err in denying Chavez's motion to suppress on this ground. Compare Walker v. State, 707 So.2d 300, 311 (Fla.1997) (upholding voluntariness of confession where the defendant was questioned for six hours during the morning and early part of day, was provided with drinks and allowed to use the bathroom when he wished, and was never threatened with capital punishment, or promised anything other than that the officer would inform the prosecutor that the defendant had cooperated), with Brewer v. State, 386 So.2d 232 (Fla.1980) (finding confession to be involuntary where police threatened the defendant with the electric chair, implying that they had power to reduce the charge against him and that his confession would lead to lesser charge), and State v. Sawyer, 561 So.2d 278, 290–91 (Fla. 2d DCA 1990) (finding confession to be involuntary where it was the product of enforced sleeplessness resulting from a sixteen-hour serial interrogation during which the defendant was provided with no meaningful breaks and police asked him misleading questions, denied his requests to rest, refused to honor his Miranda rights and used the defendant's history of blackouts to undermine his reliance on his own memory).
Subject of Decent Burial
Next, Chavez asserts that his confession should be suppressed as involuntary because, on two occasions, officers suggested that Jimmy's remains needed to be discovered for a decent burial, each of which precipitated incriminating statements. The record reflects that Estopinan did, on two occasions, say to Chavez that Jimmy deserved a decent burial. While one such event prompted an emotional response from Chavez (when he said that Jimmy no longer existed), this occurred only after Chavez had already admitted to having disposed of Jimmy's body. Neither of the occasions precipitated a truthful account of where the body was located. In context, these questionable requests for information did not coerce Chavez's confession, nor did they render it “involuntary.” See Lukehart v. State, 776 So.2d 906 (Fla.2000) (finding no error in failure to suppress statements Lukehart made after use of Christian burial suggestion, where this did not directly result in statements being given).
Sufficiency of Miranda Warnings
Chavez also asserts that his confession must be suppressed as involuntary because he was not properly advised of his right to consult with counsel before questioning. See Traylor v. State, 596 So.2d 957, 957 n. 13 (Fla.1992) (observing that “the suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during the interrogation”). Here, Chavez, who indicated that he had a twelfth-grade education, read the Metro Dade Miranda form in Spanish, and initialed it. This form has specifically been upheld as sufficient. See Cooper v. State, 739 So.2d 82, 84 n. 8 (Fla.1999) (approving this warning on the Metro Dade rights form: “If you want a lawyer to be present during questioning, at this time or any time thereafter, you are entitled to have a lawyer present.”). Thus, Chavez's claim that he was insufficiently informed of his Miranda rights fails.
Request for Death Penalty
Chavez asserts that his confession must be suppressed as involuntary because he expressed his desire to remain silent if not promised the death penalty. However, the record reflects that when Chavez indicated that he would disclose the location of Jimmy's body only if he were assured a death sentence, he was told unequivocally that he could not be guaranteed that the death penalty would be imposed. Despite having been so advised, Chavez, after a period of silent reflection, elected to confess. As stated in Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987), “ Miranda gives the defendant a right to choose between speech and silence, and [the defendant] chose to speak.” As in Keen v. State, 504 So.2d 396 (Fla.1987), the record here does not support a Fifth Amendment violation. Cf. Keen, 504 So.2d at 400 (refusing to suppress a statement where the defendant “never expressed to the detectives a desire to speak with counsel on any of the four occasions when he was advised of his rights, he initiated conversations with the detectives throughout this entire time, and signed a waiver of rights form”) (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Hoffman v. State, 474 So.2d 1178 (Fla.1985); and Cannady v. State, 427 So.2d 723 (Fla.1983)).
Chavez's Alienage
Chavez next claims that his confession should have been suppressed as involuntary because his alienage, lack of prior experience with the United States criminal justice system, and limited understanding of English produced an involuntary confession. Cf. United States v. Fung, 780 F.Supp. 115, 116 (E.D.N.Y.1992) (reflecting that Fung's poor language skills and ignorance of the American legal system were sufficient to show that she lacked understanding of Miranda rights even though she read them aloud in her native language). In this case, Chavez began the interview process speaking in English; however, Detective Murias translated all questions into Spanish from the beginning, until Estopinan entirely assumed the questioning which was conducted in Spanish (after administration of polygraph tests). Chavez's lengthy handwritten statement in Spanish (his first version of what happened to Jimmy, in which he recounted having crushed the boy accidentally against the horse farm gate), which is contained in the record, is grammatically correct, reflecting a literate person, and even contains the caveat that Chavez wished “it to be considered that the dates he has included in the statement are not considered to be exact.” In fact, when Chavez's formal statement was transcribed, he was careful to correct both spelling and grammatical errors. He was repeatedly advised in Spanish of his Miranda rights, and stated that he knew his polygraph test result was not admissible evidence. The record clearly reflects that Chavez's intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation progress. Finding no support in the record, the argument that Chavez's background caused him to misapprehend his rights in the American system fails.
Probable Cause/First Appearance
Chavez argues that the delay in bringing him before a judicial officer violated Florida Rules of Criminal Procedure 3.130 and 3.133, and therefore required suppression of his confession. A trial court's ruling on a motion to suppress is presumed correct. See Medina v. State, 466 So.2d 1046 (Fla.1985). However, under Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), Chavez had a constitutional right to have a judicial determination that probable cause existed for his continued detention within the first forty-eight hours after his arrest, and the delay in obtaining that determination is presumptively unreasonable. Cf. Powell v. Nevada, 511 U.S. 79, 83–84, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) (observing that, although the four-day delay involved was presumptively unreasonable under McLaughlin, it did not “necessarily follow, however, that Powell must ‘be set free’ ... or gain other relief, for several questions remain open for decision on remand, [including] the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin ), ... or the district attorney's argument that introduction at trial of what Powell said on November 7, 1989, was harmless in view of a similar, albeit shorter, statement Powell made on November 3, prior to his arrest.”). In determining whether the trial court erred in denying Chavez's motion to suppress his confession for this reason, we begin by examining the purpose furthered by the criminal defendant's right to a prompt probable cause determination and first appearance.
The principles underlying the necessity for a probable cause determination can be found in Gerstein. There, the Supreme Court observed that the Fourth Amendment required such a determination as a prerequisite to a detainee's further restraint of liberty: A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 87 L.Ed. 819 (1943), quoted in Gerstein, 420 U.S. at 118, 95 S.Ct. 854. The limited purpose of the hearing shaped its parameters, as established by the Supreme Court: The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard-probable cause to believe the suspect has committed a crime-traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof. ... The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64—109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.
Because of its limited function and its nonadversary character, the probable cause determination is not a “critical stage” in the prosecution that would require appointed counsel. The Court has identified as “critical stages” those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Gerstein, 420 U.S. at 120–22, 95 S.Ct. 854 (footnotes omitted).
While the probable cause hearing may be combined with the first appearance, the purpose of a first appearance is different. It serves as a venue for informing the defendant of certain rights, and provides for a determination of the conditions for the defendant's release. At first appearance, a judicial officer informs the defendant of the charge (providing the defendant with a copy of the complaint), and further informs the defendant that: (1) the defendant is not required to say anything, and that anything the defendant says may be used against him or her; (2) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed; and (3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided reasonable means to do so. Fla. R.Crim. P. 3.130; see generally 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 1.3(k) (2d ed.1992). Thus, the first appearance certainly provides one point at which the right to counsel may become affixed. See generally Fla. R.Crim. P. 3.111(a).
Chavez contends that his last confession was improperly coerced through a deprivation of his right to a first court appearance within twenty-four hours of arrest. We have held that coercion of this type, if properly shown, would be a possible ground for suppression of a confession. See Keen v. State, 504 So.2d 396, 399–400 (Fla.1987), disapproved in part on other grounds, Owen v. State, 596 So.2d 985, 990 (Fla.1992). However, where, as here, a defendant has been sufficiently advised of his rights, a confession that would otherwise be admissible is not subject to suppression merely because the defendant was deprived of a prompt first appearance. “[W]hen a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of [rule 3.130] must be shown to have induced the confession.” Keen, 504 So.2d at 400; see also Johnson v. State, 660 So.2d 648, 660 (Fla.1995) (observing that a confession may be suppressed where it was coerced through deprivation of a first court appearance within twenty-four hours); Williams v. State, 466 So.2d 1246, 1248 (Fla. 1st DCA) (reflecting that no per se rule required suppression of confession—which was suppressed on other grounds—because of delay of first appearance until thirty hours after arrest), review denied, 475 So.2d 696 (Fla.1985).
On this point, the Court's analysis in Keen is particularly instructive: Keen urges three reasons why his statement should have been suppressed. First, he claims that pursuant to Rule of Criminal Procedure 3.130, which requires an arrested person to be taken before a judicial officer within twenty-four hours of arrest, any statement made in violation of the rule must be suppressed. Keen points out that the statement at issue here was made more than twenty-four hours after his arrest. While a violation of the rule has been shown, we reject Keen's suggestion that an otherwise voluntary statement given after twenty-four hours is per se inadmissible. We agree with the reasoning expressed by the First District Court of Appeal in Headrick v. State, 366 So.2d 1190 (Fla. 1st DCA 1978), that each case must be examined upon its own facts to determine whether a violation of the rule has induced an otherwise voluntary confession. Id. at 1191. The court reasoned that when a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of the rule must be shown to have induced the confession. Id. See also Williams v. State, 466 So.2d 1246 (Fla. 1st DCA), review denied, 475 So.2d 696 (Fla.1985). Sub judice, Keen was advised on his rights to remain silent and his right to counsel on four separate occasions and gave the statement at issue only after voluntarily signing a waiver of rights. Absent a showing that the delay induced this otherwise voluntary statement, we find that the trial court properly denied Keen's motion to suppress.
Keen's suggestion that our decision in Anderson v. State, 420 So.2d 574 (Fla.1982), mandates that his statement be suppressed is unpersuasive. Anderson is clearly distinguishable as there the evidence presented to this Court showed that Anderson had been indicted prior to being taken into custody by Florida law enforcement officials who drove Anderson by car for four days from Minnesota back to Florida. The deputies were aware that Anderson had no counsel in Minnesota and that he desired appointed counsel once returned to Florida. Holding that Anderson's statement should have been suppressed, we found “significant” the fact that the statement at issue came “far after” Anderson should have been brought before a judicial officer “with the attendant advice of rights and appointment of counsel.” Id. at 576. We also found that the record failed to show a valid waiver. Id. The facts sub judice stand in stark contrast. Keen was not indicted until after the statement was given to the detectives, he was advised on four separate occasions of his right to remain silent and his right to counsel, and he signed a waiver before giving the statement. It unequivocally appears from the record that Keen knowingly, intelligently and voluntarily waived his rights before making the statement. 504 So.2d at 399–400. Applying the same analysis to this record, we conclude that the failure to provide Chavez with a first appearance within twenty-four hours after his arrest did not compel his confession. Here, as in Keen, the record reflects that Chavez was repeatedly advised of his Miranda rights, and knowingly, intelligently, and voluntarily waived them prior to confessing. Therefore, the trial court properly denied his motion to suppress on that basis. However, the question of whether suppression of Chavez's last confession is appropriate as a remedy for the failure to provide a prompt probable cause determination remains.
Because Chavez was not afforded a probable cause determination within forty-eight hours of having been taken into police custody, the burden shifts to the State to show that the existence of a bona fide emergency or other extraordinary circumstance justified the delay; otherwise, a McLaughlin violation has occurred. See McLaughlin, 500 U.S. at 57, 111 S.Ct. 1661. Here, record testimony suggests that the police perceived that exigent circumstances existed because of their efforts to locate the missing child, who had disappeared under untoward circumstances.FN32 However, given the amount of time which had transpired between Jimmy's initial disappearance and Chavez's apprehension, those circumstances were not as compelling as they might otherwise have been had the two events occurred more closely in time. It is therefore unclear whether extraordinary circumstances would excuse the officers' failure to obtain a probable cause determination within forty-eight hours of Chavez's arrest. FN32. Estopinan testified that, although he suspected that Jimmy Ryce was dead, he was not certain of that fact when questioning Chavez. He testified that, just prior to Chavez's last confession, “I felt that it was time for him to be truthful and tell us what really happened to Jimmy, and I went back and began to ask him about Jimmy and where Jimmy was located. We wanted to find Jimmy.” Officer Michael Malott testified that the detectives were concerned that Chavez had provided information regarding Jimmy's death: “[M]y concerns were that he had made admissions to a crime that we had not been able to disprove, and my concerns were we wanted to continue our investigation in hopes of detectives looking for or actually finding Jimmy Ryce and getting truthful information.”
Nonetheless, assuming that the failure to bring Chavez before a magistrate to determine probable cause violated the rule articulated in McLaughlin, we conclude that suppression of his last confession is not an appropriate remedy for the violation.FN33 On this record, the unique circumstances leading to Chavez's last confession weigh in favor of admission rather than suppression. Further, even assuming that suppression were appropriate, given the overwhelming evidence of Chavez's guilt, the error in admitting his last confession would be harmless. FN33. The Supreme Court has specifically declined to address the issue of whether a confession which is voluntary under the Fifth Amendment must be suppressed where a McLaughlin violation has occurred. See Powell v. Nevada, 511 U.S. 79, 85, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) (declining to address the issue); but cf. id. at 89, 114 S.Ct. 1280 (Thomas, J., joined by Rehnquist, C.J., dissenting) (reasoning that the defendant's statement in that case should not be suppressed “because the statement was not a product of the McLaughlin violation”).
As stated earlier, probable cause to arrest Chavez in connection with the disappearance of Jimmy Ryce existed at the time of his apprehension. Chavez has not demonstrated that either his arrest on December 6 or his detention during the first forty-eight hours following the arrest was unlawful. During that period of time, Chavez admitted his involvement with Jimmy's disappearance; admitted shooting the boy; admitted disposing of Jimmy's remains; and stated that what he had done would never have happened had he not been sexually battered as a boy in Cuba. During this time, crime scene investigators also had noticed the cement-filled planters on the Scheinhaus property, and suspected that they might contain a cadaver.FN34 A “tube of JR water-based lubricant” and a blood-stained part of the wood floor of the horse farm trailer just inside the front door had been collected by crime scene technicians and packaged for transmittal to serology for processing. The murder weapon, containing Chavez's fingerprint, had already been recovered. While the particulars of how and why Jimmy died and what was done to his body afterwards evolved over this period of time, Chavez's involvement as the perpetrator of the crimes, and the motivation he ultimately revealed for committing them, did not change significantly from what investigators came to know during the first forty-eight hours, as compared to what Chavez disclosed in his last confession which occurred very shortly thereafter. FN34. On December 7, 1995, at approximately 1 p.m., four K 9 dogs were taken to the Scheinhaus property to search for Jimmy's remains. Two dogs alerted, showing basic interest in the cement planters located near the horse stables. Additionally, the medical examiner testified that, when he was on the Scheinhaus property on December 8 at about 12 noon, he thought the concrete-filled planters looked suspicious, expressing his concerns at that time that the planters might contain the remains of a body.
A number of courts which have examined the rationale of Gerstein and McLaughlin have concluded that the failure to provide a defendant with a timely probable cause determination does not require suppression of evidence obtained during an interrogation if sufficient evidence existed at the time the individual was first taken into police custody to arrest the defendant for the crime with which he or she was subsequently charged. In United States v. Daniels, 64 F.3d 311 (7th Cir.1995), cert. denied, 516 U.S. 1063, 116 S.Ct. 745, 133 L.Ed.2d 693 (1996), the defendant was arrested for bank robbery, and arraigned within the forty-eight hour time limit of McLaughlin (some forty hours after his arrest), but he argued that the police delayed his arraignment so that they could gather more evidence against him—specifically, so they could conduct another lineup while Daniels was still in their custody. The Daniels court disagreed, reasoning that McLaughlin prohibited delays designed to gather “additional evidence to justify the arrest.” It observed that the lineup was conducted to bolster the case against Daniels: Daniels' argument seems to interpret [ McLaughlin ] to preclude law enforcement from bolstering its case against a defendant while he awaits his Gerstein hearing; that is a ludicrous position. Gerstein and its progeny simply prohibit law enforcement from detaining a defendant to gather evidence to justify his arrest, which is a wholly different matter. Probable cause to arrest Daniels already existed and that is what Ewer's affidavit reported. Id. at 314; see also Peterson v. State, 653 N.E.2d 1022, 1025 (Ind.Ct.App.1995) (holding that interrogation of an arrested suspect does not constitute an unreasonable delay where police had probable cause for arrest); State v. Chapman, 343 N.C. 495, 471 S.E.2d 354, 356 (1996) (holding that the interrogation of a defendant about crimes for which he has just been arrested is not an “unnecessary delay” for purposes of a McLaughlin analysis). As stated in Riney v. State, 935 P.2d 828, 834–35 (Alaska Ct.App.1997):
If McLaughlin were interpreted in the manner Riney suggests [that interrogation of an arrested suspect would constitute an unreasonable delay even where the police already have probable cause for the suspect's arrest], it would lead to an unjustifiable disparity in treatment between persons arrested on warrants and persons arrested without warrants. Under even the most expansive interpretation of McLaughlin, persons arrested on warrants can be interrogated following their arrest: no Gerstein hearing is required when a person is arrested on a warrant, because the judicial determination of probable cause for the arrest has already been made. See State v. Vice, 519 N.W.2d at 566. Thus, under Riney's reading of McLaughlin, the existence or non-existence of an arrest warrant would determine whether the police were authorized to question someone they had just taken into custody. Riney suggests no rationale for such a rule, and we perceive no convincing rationale for it either. So long as the police do not detain a suspect for the purpose of gathering probable cause to justify the arrest after the fact, questioning an arrestee about the crime(s) for which he or she has been arrested does not constitute an “unreasonable” delay under Gerstein and McLaughlin. Here, there was probable cause to arrest Chavez in connection with Jimmy's disappearance at the time he was detained, and the defendant, who was given his Miranda rights four times prior to confessing, also signed an affidavit waiving his first appearance within forty-eight hours of apprehension. FN35 The record reflects ample evidence of Chavez's informed waiver of his right to counsel, his knowing waiver of the right to first appearance, and his willing cooperation with the police officers in their investigation of Jimmy's disappearance.FN36
FN35. The defense maintained that Chavez was taken into custody at 7:35 p.m. on December 6. Detective Estopinan testified that, although Detective Piderman had interrupted this discussion with Chavez at 4:30 p.m. on December 8 with an affidavit waiving Chavez's first appearance, because Chavez was emotional and talking about having been sexually battered by a relative in Cuba, Estopinan decided to let Chavez finish talking before they discussed the waiver. This occurred at 6:30 p.m., at which time Estopinan told Chavez of the right to appear before a judge within twenty-four hours; that, during this hearing he would be advised of any charges against him; that he would have a right to meet with his family, friends or others he wished to see; and that he would be entitled to speak with an attorney. Estopinan testified that he asked Chavez if he would be willing to forego the hearing, and Chavez agreed. Chavez then signed the waiver of first appearance form at 6:50 p.m. FN36. Some courts have applied a “voluntariness” test in determining whether a confession must be suppressed in light of a McLaughlin violation. See United States v. Perez–Bustamante, 963 F.2d 48, 51–54 (5th Cir.1992); State v. Tucker, 137 N.J. 259, 645 A.2d 111, 117–19 (1994).
Further, even assuming a Fourth Amendment violation occurred due to the failure to comply with the McLaughlin rule, the record here reflects that Chavez's confession “was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).FN37 As we stated (in a different context) in Voorhees v. State, 699 So.2d 602, 611 (Fla.1997): FN37. Other jurisdictions have rejected the “voluntariness” test, applying a “fruit of the poisonous tree” analysis to determine whether a confession obtained during an illegal detention must be suppressed. See State v. Huddleston, 924 S.W.2d 666, 673 (Tenn.1996) (citing Williams v. State, 264 Ind. 664, 348 N.E.2d 623, 629 (1976), and Black v. State, 871 P.2d 35 (Okla.Crim.App.1994)).
Several years after Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)], the Supreme Court clarified the analysis to be undertaken when determining whether evidence obtained following an illegal detention must be suppressed. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). These factors include whether Miranda warnings were given, the temporal proximity of the arrest and confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of officer misconduct. Id. at 603–04, 95 S.Ct. at 2261–62. The voluntariness of the statement is a threshold requirement, and the burden of showing admissibility is on the state. Id.; see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Sanchez–Velasco v. State, 570 So.2d 908 (Fla.1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2045, 114 L.Ed.2d 129 (1991). Applying the Brown factors, we conclude that the trial court did not err in denying suppression of Chavez's confession. Here, Chavez was given Miranda warnings three times during the first forty-eight hours of his detention, and was informed of those rights a fourth time immediately prior to his final confession. Chavez gave several incriminating statements during this time, with only the very last version of his confession being given after forty-eight hours had elapsed. Importantly, during the period that Chavez was in police custody, there were numerous breaks, including two separate outings to properties in the Redlands. Although Chavez was in the company of police officers, the testimony of those who observed Chavez, and the photographs depicting him, reflect that Chavez was not constrained in any way during that time. Only hours before giving his final confession, after a period of reflection, Chavez himself initiated the conversation with Detective Estopinan in which he recounted his sexual abuse in Cuba, stating that, but for those experiences, what he had done here would not have occurred. These numerous periods of rest, outings to the southern part of the county, refreshments, and quiet reflection weigh significantly in our analysis.
Lastly, we consider the purpose and flagrancy of the official misconduct. Here, as indicated earlier, there was probable cause to arrest Chavez at the time he was first detained, and it is clear that Chavez's continued detention was focused on locating his child victim, rather than on “gathering additional evidence to justify the arrest.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. While we admonish against, and in no way condone, the delay which occurred here in obtaining a prompt and impartial probable cause determination, the totality of the circumstances reflected in this record does not evidence purposeful misconduct on the part of the officers motivating that delay. Accordingly, after considering the above factors, we conclude that Chavez's final confession, even if made while Chavez was held in violation of the Fourth Amendment, was not the product of the unlawful detention. Cf. Powell, 511 U.S. at 89, 114 S.Ct. 1280 (Thomas, J., joined by Rehnquist, C.J., dissenting) (reflecting that, had the issue of the propriety of suppressing the defendant's statement been reached, applying established precedents, the statement should not be suppressed “because the statement was not a product of the McLaughlin violation”); Darks v. State, 954 P.2d 152 (Okla.Crim.App.1998) (affirming Darks' conviction, even though he was not given a probable cause determination within forty-eight hours, because he was not “coerced into giving evidence he otherwise would not give,” and his “confession was not a product of an illegal detention”). Therefore, under the unique circumstances of this case, the record supports the trial court's denial of Chavez's motion to suppress.
Right to Counsel
Chavez also argues that the delay in providing him a first appearance within twenty-four hours of arrest interfered with his right to counsel, which would have attached at first appearance, resulting in a deprivation of this right. Cf. Peoples v. State, 612 So.2d 555, 557 & n. 2 (Fla.1992) (observing that the knowing exploitation of an opportunity to confront the accused without counsel is as much a breach of the obligation “not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity”). Under the Florida Constitution, the right to counsel attaches “at the earliest of the following points: when he or she is formally charged with a crime via the filing of an indictment or information, or as soon as feasible after custodial restraint, or at first appearance.” Traylor v. State, 596 So.2d 957, 970 (Fla.1992) (footnotes omitted). Chavez also argues that his right to counsel was infringed upon when police investigators wrongfully excluded an Assistant Public Defender who had not yet been appointed as Chavez's counsel from participation in the interrogation process. As fully discussed before, here, Chavez was properly, timely and repeatedly informed of his right to counsel. He knowingly and voluntarily waived that right, and the record does not support a conclusion that the delay in his first appearance induced that waiver. Further, as this Court has previously held, it was not error for the police to exclude an Assistant Public Defender who had not yet been appointed as Chavez's counsel. See Harvey v. State, 529 So.2d 1083, 1085 (Fla.1988) (finding no due process violation where the police denied a public defender access to the defendant when the public defender voluntarily went to the jail after hearing about the defendant's arrest to see if the defendant needed a lawyer); cf. also Smith v. State, 699 So.2d 629 (Fla.1997) (observing, in a case where the defendant tried to suppress his confession obtained after an assistant public defender had volunteered and been appointed to represent the defendant that “[t]he mere appointment of an attorney at the attorney's request is not enough to invoke the right [to counsel]; the accused must invoke the right.”). Therefore, the trial court did not err in failing to suppress Chavez's confession based upon a claimed violation of the right to counsel for this reason.
Media Coverage
As his next claim, Chavez asserts that the trial court deprived him of the right to a fair trial when, upon change of venue from Dade County to Orange County, it reversed its earlier ruling prohibiting photography of jurors in the courtroom. Florida Rule of Judicial Administration 2.170 (Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings) expressly authorizes the use of video and still cameras in the courtroom, and provides, in subdivision (i), that “[r]eview of an order excluding the electronic media from access to any proceeding, excluding coverage of a particular participant, or upon any other matters arising under these standards shall be pursuant to Florida Rule of Appellate Procedure 9.100(d).” (Emphasis supplied.) As occurred on two occasions here, when determining whether media access will be restricted, the court must provide notice and an opportunity for the media to be heard. See WFTV, Inc. v. State, 704 So.2d 188, 190 (Fla. 4th DCA 1997). This hearing enables the court to determine whether there is an evidentiary basis to conclude that the effect of cameras on the proceeding would be qualitatively different on the participants from the effect persons ordinarily experience in the presence of cameras, or whether that effect would be qualitatively different from the result of coverage by other types of media. See State v. Palm Beach Newspapers, 395 So.2d 544 (Fla.1981); State v. Green, 395 So.2d 532 (Fla.1981); In re Petition of Post–Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979); Florida Times–Union v. State, 747 So.2d 1030, 1032 (Fla. 1st DCA 1999).
In Post–Newsweek Stations, this Court considered a petition to change Canon 3A(7) of the Code of Judicial Conduct to allow the electronic media access to Florida's courtrooms. See In re Petition of Post–Newsweek Stations, 370 So.2d at 765. One of the arguments considered by the Court involved the psychological impact on courtroom participants; in particular, the expressed concern that “jurors [would] either be distracted from concentrating on the evidence and the issues to be decided by them or, because of their identification with the proceedings, they [would] fear for their personal safety, be subjected to influence by members of the public, or attempt to conform their verdict to community opinion.” Id. at 775. The Supreme Court addressed these “concerns that any fair minded person would share because they would, certainly in combination, be antithetical to a fair trial,” stating: The fact remains, however, that the assertions are but assumptions unsupported by any evidence. No respondent has been able to point to any instance during the pilot program period where these fears were substantiated. Such evidence as exists would appear to refute the assumptions. Id. at 775–76. The trial court's exercise of discretion in deciding whether to prohibit media coverage of a particular trial participant is based upon the following standard:
The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media. Id. at 779. In the context of jury selection, however, it would not “be necessary to show particularized concern on the part of each prospective juror in order to preclude cameras from photographing the entire venire.” Times Publishing Co. v. State, 632 So.2d 1072, 1075 (Fla. 4th DCA 1994); accord Sunbeam Television Corp. v. State, 723 So.2d 275, 280 (Fla. 3d DCA 1998) (Cope, J., dissenting) (observing, in the dissenting opinion later adopted by the court on rehearing en banc, that “[w]here, as here, the concern about unsolicited contact with jurors is applicable to the entire group of potential, and actual, jurors, the jurors can be treated as a group, without a juror-by-juror inquiry”).
In making its ruling here, the court relied upon the original panel decision in Sunbeam Television Corp. v. Florida, 723 So.2d 275 (Fla. 3d DCA), reh'g en banc granted, id. at 280 (Fla. 3d DCA 1998), review denied, 740 So.2d 529 (Fla.1999). In that highly controversial case, two television stations challenged an order prohibiting them from publishing jurors' names and addresses and videotaping them. On appeal, the broadcasters conceded that the court could forbid publication of names and addresses, but argued that they could not be prevented from photographing the jurors. The court initially upheld the prohibition against publication of names and addresses, but quashed the prohibition on video photography, holding that the court's concern that jurors could be identified from a broadcast and subjected to unsolicited contact from members of the public did not justify the order. On rehearing en banc, in a decision published just prior to Chavez's Spencer hearing, the district court adopted the dissenting view which had been in the earlier decision before a panel of the court, concluding that the court's expressed interest in insulating jurors from undue influence supported its prohibition against videotaping jurors' faces. Such order could not, however, act as an unconstitutional prior restraint by precluding the broadcasting of any juror information revealed in open court.
Had the trial judge been prescient, he would not have abused his discretion in continuing the order prohibiting the jurors' faces from being photographed. However, Chavez has not shown that the judge abused his discretion in failing to do so. No court has held that it is per se reversible error to allow the jurors' faces to be photographed in a controversial criminal trial. It is ultimately the fairness of the proceedings which determines the appropriateness of limitations on media access. Here, the prospective jurors were advised by the trial court that cameras would be allowed in the proceedings, and were asked, as a group, whether any of them had concerns about that. The two prospective jurors who did express reservations regarding media coverage were removed for cause, and did not serve on Chavez's jury. The record does not reflect that Chavez sought review of the trial court's ruling which permitted such coverage, as he was entitled to do, even though defense counsel consistently maintained that the trial court had the authority to continue to limit media access as it had originally ordered. Further, the trial court advised defense counsel that it was well aware of his position with respect to photographing the jurors, and said that the court would “readdress this issue if it's warranted in the future. So if the issues change and you need to bring something to the Court's attention, please notify the Court.” To minimize disruption in the courtroom, the trial court assigned the jurors identification numbers to be used instead of their names, and required that the “still photographer, if there is one going to be in court during the proceedings, will have to remain seated in one seat throughout the course of the proceedings while the jurors are in the courtroom,” in accordance with the Rules of Judicial Administration. Considering all these circumstances, the order allowing jurors to be photographed and the denial of Chavez's request to conduct individual voir dire of jurors not expressing concerns about the presence of cameras did not impair the fundamental fairness of Chavez's trial.
Admission of Mattress
Chavez maintains that the trial court reversibly erred in admitting, over timely objection, a mattress (found in the trailer at the horse farm) which was stained with blood stipulated to belong to neither Chavez nor Jimmy Ryce. Chavez asserts that, even if the mattress had any probative value, it was clearly outweighed by the prejudicial impact. See § 90.403, Fla. Stat. (1995) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.”).
As we observed in Goodwin v. State, 751 So.2d 537, 540 (Fla.1999) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), the harmless error analysis adopted in Chapman “requires appellate courts to first consider the nature of the error complained of and then the effect this error had on the triers of fact.” The “oft-quoted standard” of appellate review (in the context of alleged improper prosecutorial conduct) requires reversal where it is “completely impossible ... to say that the State has demonstrated, beyond a reasonable doubt” that the error complained of “did not contribute to” the defendant's conviction. Id. (quoting Chapman, 386 U.S. at 26, 87 S.Ct. 824). Under section 90.403, Florida Statutes (1995), relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or potential to mislead the jury. These competing values must be weighed in determining admissibility. See State v. McClain, 525 So.2d 420, 422–23 (Fla.1988). Here, Chavez objected to admission of the mattress, which was stipulated to be unrelated to this case. The State argued, principally, that it was being offered to show, contrary to the defense theory of the case, that the interrogating officers did not “force-feed” Chavez the elements of his confession during questioning. The State reasoned that, because the police knew about the bloody mattress at the time of Chavez's interrogation, had they been supplying Chavez with the details of his confession, the mattress would logically have been included as an element of the factual narrative. The trial court, agreeing that the mattress was relevant, permitted its introduction into evidence, providing the cautionary instruction that the mattress was not related to this case, and that neither Chavez nor Jimmy Ryce was the source of the blood stain.
The discovery by authorities of the obviously bloody mattress in the trailer during the time that Chavez was being questioned, and its subsequent testing, were logically relevant to disprove Chavez's contention that the officers who interrogated him had suggested all the elements of his detailed confession. The blood on the mattress was apparent, and, although it had not been forensically checked while Chavez was being questioned, had the officers been prompting Chavez, as he claims, it would have been logical to have asked about the mattress. Further, the fact that the mattress was tested is relevant to Chavez's claim that the police failed to investigate his lead when he told them that Ed was the real killer. For this limited purpose, however, it would have been sufficient to admit into evidence testimony regarding the mattress and photographs of the mattress as it appeared at the crime scene, rather than the mattress itself. Here, defense counsel argued that the bloody mattress raised the spectre that Chavez had murdered an additional person other than the victim in this case. However, that conclusion does not logically flow from the facts as adduced at trial. By his own confession, Chavez does not appear to have been familiar with the interior of the trailer where Jimmy was murdered. Chavez said that he had to look around for something to use as a lubricant, and test it to see if it burned.FN38 Further, his victim was shot while trying to escape; he was not stabbed to death, nor does the record reflect the extensive presence of blood. There is absolutely no suggestion in the record that Chavez killed anyone other than Jimmy. FN38. Chavez had stated in his confession that, in sexually assaulting Jimmy, he had used a tube of lubricant containing blue lettering on it which he had found in the horse farm trailer. A bottle of water-based lubricant was recovered from the horse farm trailer and received into evidence without objection as State's Exhibit 139.
However, even assuming that the court erred in allowing the mattress itself to be admitted (because the prejudicial effect potentially outweighed the probative value), such error was harmless. Given the overwhelming evidence of Chavez's guilt, on this record, there is no possibility that admission of the mattress contributed to the outcome of the proceedings. See Blackwood v. State, 777 So.2d 399, 408 (Fla.2000), cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001); State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).
Corpus Delicti for Sexual Battery
Chavez next claims that the trial court erred in denying his motion for judgment of acquittal as to the capital sexual battery charge because the State failed to prove the corpus delicti of the crime. The phrase “corpus delicti” refers to proof independent of a confession that the crime was in fact committed. See Schwab v. State, 636 So.2d 3, 6 (Fla.1994). Here, as in Schwab, we find this assertion unpersuasive.
In Schwab, the defendant had moved for judgment of acquittal on the murder, sexual battery, and kidnapping charges against him, arguing that the State had failed to prove the corpus delicti of those crimes independent of his statements. On appeal, Schwab argued that the trial court erred in denying those motions. In rejecting this argument, the Court articulated the general principles which govern a corpus delicti analysis: The general order of proof is to show that a crime has been committed and then that the defendant committed it. Spanish v. State, 45 So.2d 753 (Fla.1950); see State v. Allen, 335 So.2d 823 (Fla.1976). “But in many cases the two elements are so intimately connected that the proof of the corpus delicti and the guilty agency are shown at the same time.” Spanish, 45 So.2d at 754. Thus, the “evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together and inseparable on one foundation of circumstantial evidence.” Cross v. State, 96 Fla. 768, 780–81, 119 So. 380, 384 (1928). A defendant's confession or statement “may be considered in connection with the other evidence,” but “the corpus delicti cannot rest upon the confession or admission alone.” Id. at 781, 119 So. at 384. Before a confession or statement may be admitted, there must be prima facie proof tending to show the crime was committed. Frazier v. State, 107 So.2d 16 (Fla.1958); Cross; see Farinas v. State, 569 So.2d 425 (Fla.1990); Bassett v. State, 449 So.2d 803 (Fla.1984). Additionally, by the end of trial the corpus delicti must be proved beyond a reasonable doubt. Cross. 636 So.2d at 6. In applying these principles to the facts in Schwab, we stated:
The state's proof met these standards. The medical examiner testified that the victim died from manual asphyxiation, most probably by strangling or smothering. The victim's nude body and the clothes that had been cut off him were found concealed in a footlocker in a remote location. Cf. Stano v. State, 473 So.2d 1282 (Fla.1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986). A wad of tape also found in the footlocker yielded a fingerprint identified as Schwab's. Witnesses testified that Schwab rented and returned the U-haul truck. Although the victim may have gone willingly with Schwab initially, the conclusion that at some point he was held against his will is inescapable. Cf. Sochor v. State, 619 So.2d 285 (Fla.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 596 (1993); Bedford v. State, 589 So.2d 245 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992). The details in Schwab's statements correspond well with the physical evidence. Therefore, we hold that the state submitted sufficient proof of the corpus delicti to admit Schwab's admissions that he kidnapped and raped the victim. Moreover, all of the evidence proved beyond a reasonable doubt the corpus delicti of each of the charged crimes and that Schwab committed them. The Schwab analysis is instructive in this case. Here, as in Schwab, the details in Chavez's confession “correspond well with the physical evidence.” The victim—a little boy—had disappeared months before his body was found, at a time when he had been expected to return home directly from school (suggesting that he was taken by an adult by force). The Scheinhaus property where Chavez lived was in the same general vicinity from which the little boy had disappeared. Mrs. Scheinhaus found a handgun which had been stolen from her in Chavez's trailer at the same time that she discovered the victim's book bag there. Both the gun and the book bag were found to have Chavez's prints on them, and the gun was positively identified as the murder weapon. From these facts, as in Schwab, “the conclusion that at some point [the child victim] was held against his will is inescapable.”
The little boy, who died almost instantly from a gunshot wound, bled on the threshold of the horse farm trailer (which was situated in a remote location), suggesting that the murderer had stopped him as he tried to escape. As observed by the trial court here in making its ruling, “[t]he state established that the victim didn't know the defendant, and there was no reason for Jimmy Ryce to be alone with the defendant in a remote area of Dade County in a small trailer. There was no evidence that a ransom demand was ever made.” Jimmy's remains showed, significantly, that his pants were still unzipped. He was also otherwise partially unclothed, having one shoe off, and a sock missing, further suggesting that he had, at some point, been disrobed. A tube of lubricant matching the description Chavez gave in his final confession was recovered from the trailer where the victim died and admitted into evidence, providing additional corroboration of the details of Chavez's confession regarding the sexual battery. On these facts, the trial court did not err in concluding that the State had submitted sufficient proof of the corpus delicti to admit into evidence Chavez's admissions that he had sexually assaulted the victim. The evidence proved beyond a reasonable doubt the corpus delicti of the sexual battery charge, and that Chavez committed it.
Cumulative Photos
Chavez claims that the trial court erred in admitting, over defense objection, cumulative gruesome photographs depicting the victim's remains. As stated by the Court in Henderson v. State, 463 So.2d 196, 200 (Fla.1985), “[t]hose whose work products are murdered human beings should expect to be confronted by photographs of their accomplishments.” Here, the medical examiner testified that the photographs showing injury to the organs, and specifically to the heart, were not cumulative.FN39 The doctor also explained the difference between Exhibits 22 and 29, refuting the suggestion that these photographs were cumulative. Thus, the record supports admission of the photographs as relevant and not cumulative. FN39. The medical examiner testified:
Well, first of all, there are no photographs duplicative of 22 and there are no photographs duplicative of 24. In terms of 21, I can see some of the injuries in 24 as shown in 21; however, it's out of sequence in terms of my explanation that I've aligned in these slides. So it would be kind of out of sequence to take that out. It's also a much further distance as shown in 24.
In the Course of Kidnapping Aggravator
The trial court here denied Chavez's requested instruction on “doubling.” Chavez asserts that the jury based its conviction for first-degree murder on the felony murder theory with kidnapping as the underlying felony; therefore, the penalty phase instruction regarding kidnapping allowed the jury to improperly “double” the same aspect of the crime. Additionally, Chavez maintains that the trial court erred in finding the “in the course of a kidnapping” aggravator in this case. Here, Chavez was charged in the indictment with the offense of kidnapping Jimmy Ryce. As provided in section 787.01(1)(a)(2)-(3), Florida Statutes (1995), “[t]he term ‘kidnapping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to ... [c]ommit or facilitate commission of any felony,” or to “[i]nflict bodily harm upon or terrorize the victim or another person.” Further, under section 787.01(1)(b), “[c]onfinement of a child under the age of 13 is against his will within the meaning of this subsection if such confinement is without the consent of his parent or legal guardian.”
In Faison v. State, 426 So.2d 963, 965 (Fla.1983), this Court adopted the test enunciated in State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976), whereby, to sustain a conviction for kidnapping, the confinement (a) must not be slight, inconsequential and merely incidental to the other crime; (b) must not be of the kind inherent in the nature of the crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. In Faison, applying that test, the Court held that the defendant's act of moving one victim to the rear of an office and another victim from the kitchen to the bedroom was sufficient for a kidnapping conviction. Here, the child victim was taken by an adult stranger at gunpoint to a remote trailer where his blood stains were later found. This conduct was obviously intended to facilitate the subsequent sexual battery, which could not have been so easily effected where Jimmy was abducted. Applying a Faison analysis, the jury could properly conclude that these facts were sufficient to support a kidnapping conviction. See also Ferguson v. State, 533 So.2d 763, 764 (Fla.1988) (recognizing that evidence that the victim was confined to make another crime substantially easier to commit is sufficient to support a kidnapping charge). Further, this Court's precedent has already resolved the “doubling” argument contrary to Chavez's position. See Hudson v. State, 708 So.2d 256, 262 (Fla.1998) (rejecting an argument that the “murder in the course of a felony” aggravator is an invalid automatic aggravator).
Avoiding Arrest Aggravator
Chavez argues that his death sentence should be reversed because the trial court erred in considering, and in instructing the jury that it could consider, as an aggravating factor that the murder was committed for the purpose of avoiding lawful arrest. The trial court, in its sentencing order, stated the following: The totality of the circumstances of this case would suggest that the sole or dominant motive for the murder of Samuel James Ryce was the elimination of this witness. The defendant stated in his confession that while he intended to release the victim in a remote area of the county he was unable to do so because a helicopter was conducting a search of the area. The defendant stated that he believed that if he released the victim at this time he would be caught. The defendant shot and murdered the victim when he attempted to escape from the trailer where he was being held captive. The evidence in this case clearly established that the defendant's sole motive for the murder for the victim was to eliminate the only witness of the kidnaping and sexual battery. The Court finds that this aggravating circumstance has been proven beyond a reasonable doubt.
The correctness of the trial court's legal conclusion was confirmed not only by evidence establishing the circumstances of the victim's death, but by Chavez's own transcribed statement, in which he explained, “It was the only way that I had in order to avoid—to prevent him from going out.” Being amply supported by the record, the trial court's finding that the “avoid arrest” aggravator was established on these facts was not error.
Heinous, Atrocious or Cruel Aggravator
Next, Chavez claims that his death sentence should be reversed because the trial court erred in giving the “heinous, atrocious, or cruel” aggravator (“HAC”) instruction. Here, the trial court found: The evidence in this case established that the victim, Samuel James Ryce, was abducted at gunpoint by the defendant. The defendant approached the victim with a gun in his hand and asked him if he wanted to die. The victim became frightened and answered no and was then ordered by the defendant to get into his truck. The defendant then drove his vehicle to a trailer in a remote area of the county where he sexually battered Samuel James Ryce. After committing the sexual battery the defendant drove the victim to other locations before he finally returned the victim to the trailer. During this period of time the victim on at least two (2) occasions asked the defendant if he was going to be killed. The defendant, Juan Carlos Chavez, never told Samuel James Ryce that he was not going to die nor did he take any action to alleviate the victim's fear of death. In fact, the evidence revealed that the defendant played ‘mind games' with the victim by asking him what he thought the defendant could do with him. The defendant also stated that throughout this period of time the victim was constantly sobbing. “For the purpose of this aggravator a common sense inference as to the victim's mental state may be inferred from the circumstances.” Swafford, 533 So.2d at 277.FN40 The victim was held captive by the defendant for over 3 1/2 hours before he was killed. Based upon the evidence, there can be no doubt that Samuel James Ryce lived every minute of his last few hours of his life with the fear of death. This fear and emotional strain was willfully inflicted on this victim by the defendant and was unnecessarily torturous in nature. FN40. Swafford v. State, 533 So.2d 270 (Fla.1988).
As this Court stated in Swafford, 533 So.2d at 277 (additional citations omitted): In numerous cases the Court has held that this aggravating factor could be supported by evidence of actions of the offender preceding the actual killing, including forcible abduction, transportation away from possible sources of assistance and detection, and sexual abuse. In Parker v. State, 476 So.2d 134, 139 (Fla.1985), we quoted the statement in Adams v. State, 412 So.2d 850, 857 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982), that “fear and emotional strain preceding a victim's almost instantaneous death may be considered as contributing to the heinous nature of the capital felony.” Moreover, the victim's mental state may be evaluated for purposes of such determination in accordance with a common-sense inference from the circumstances. Preston v. State, 444 So.2d 939, 946 (Fla.1984) (“victim must have felt terror and fear as these events unfolded”) (emphasis added). Here, as in Swafford, factors based on events preceding the shooting—abduction, fear, mental anguish, and sexual abuse—support the trial court's finding of HAC.
Diminishment of Jury's Role in Sentencing
Chavez argues that the prosecutor improperly diminished the jury's role in making a sentencing recommendation during both voir dire FN41 and the penalty phase FN42 of the trial. However, during voir dire, when a juror suggested that the advisory recommendation “[took] a burden off” him, the trial court immediately, and properly, informed the jury that it would give great weight to any advisory sentence recommended.FN43
FN41. During voir dire questioning, the following exchange occurred: MR. BAND: Well, I'm not sure that I follow that. In a sense, you are correct. Ultimately, the Judge makes the decision. And as he has told you, he gives the jury's recommendation great weight. He looks to the jury for advice. You sit as an advisory board to the Court, if you will. Does that—I kind of get the drift, I guess, that that produces on you or places upon you some burden you feel uncomfortable with? JUROR 991: No, just the opposite. I feel like it takes the burden off of me, because ultimately— FN42. During closing argument of the penalty phase, the prosecutor stated: Remember, again, you are not asked to pass sentence. That is solely the burden of the Court, and this Court alone. The Court will weigh your recommendation— FN43. The trial court advised the panel: Ladies and gentlemen, I just want you to understand that whatever recommendation you make, I give great weight to that recommendation. And I must underline “great weight.” So it's not a situation where you can sit here as jurors and say, well, it doesn't matter what we do, because it's going to be the judge making the decision.
On this record, viewing the totality of the circumstances (including the trial court's curative instruction), the jury's role in sentencing was not impermissibly diminished. It was told that its recommendation would be advisory, and given great weight. This correctly states the law in Florida. See generally Grossman v. State, 525 So.2d 833, 839–40 (Fla.1988).
Proportionality and Remaining Claims
Consistent with our mandate, we have conducted a proportionality review in this case, and determined that, here, the death penalty is appropriate and proportional.FN44 Cf. Wike v. State, 698 So.2d 817, 823 (Fla.1997) (holding death sentence proportional for kidnapping and murder of a six-year-old child committed concurrently with the kidnapping, attempted murder, and sexual battery of her eight-year-old sister, where CCP and committed-to-avoid-arrest aggravators were proven); Schwab, 636 So.2d at 7 (holding death sentence proportional for kidnapping, murder, and sexual battery of a thirteen-year-old boy, where prior conviction of violent felony, felony murder and HAC were proven); Carroll v. State, 636 So.2d 1316 (Fla.1994) (holding death sentence proportional for strangulation murder and sexual battery of child victim). We reject without discussion Chavez's remaining claims.FN45 On rehearing, Chavez has asserted that Florida's capital sentencing scheme violates the United States Constitution under the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (2002), and denied relief. We find that Chavez is likewise not entitled to relief on this claim.
FN44. The trial court found the following aggravators: (1) that a capital felony was committed while the defendant was engaged in the commission of or in an attempt to commit or escape after committing the crime of kidnapping; (2) that a capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (3) that the capital felony was especially heinous, atrocious or cruel. The trial court found the following statutory mitigators, according them the weight indicated: (1) the defendant's family background and good family relationship (some weight); (2) the defendant's political and economic background (little weight); (3) the defendant's good work record and ability to work and earn a living (some weight); and (4) the defendant's ability to establish and maintain positive and helping relationships (some weight). The trial court also found the following nonstatutory mitigators, according them the weight indicated: (1) the defendant's good jail conduct and courtroom demeanor (very little weight) and (2) the defendant's lack of a prior history of violence (some weight). After delineating these factors, the trial court stated: This Court finds that the quality of the aggravating factors in this case greatly outweigh the mitigating circumstances. The strength of the aggravating circumstances in this case are so overwhelming that they make the mitigating circumstances appear insignificant by comparison.
FN45. These are: (1) The death penalty is unconstitutional. See Ferguson v. State, 417 So.2d 639, 641 (Fla.1982) (“The death penalty in Florida as prescribed in section 921.141, Florida Statutes (1977), has been upheld repeatedly against arguments that it constitutes cruel and unusual punishment or violates the constitutional guarantees of equal protection and due process.”). (2) Section 921.141(7), Florida Statutes (1995) (permitting victim impact evidence in a capital sentencing proceeding) is unconstitutional. See Payne v. Tennessee, 501 U.S. 808, 823, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (finding that victim impact evidence is not offered to encourage a comparison of victims but to “show instead each victim's ‘uniqueness as an individual human being,’ whatever the jury might think the loss to the community resulting from his death might be.”); Burns v. State, 699 So.2d 646, 653 (Fla.1997) (rejecting challenges to the victim-impact statute based upon claims that it violates the prohibition against ex post facto laws, improperly regulates practice and procedure, allows admission of irrelevant evidence which does not pertain to any aggravator or mitigator, and violates equal protection because it may encourage the jury to give different weight to the value of different victims' lives); see generally Windom v. State, 656 So.2d 432, 438 (Fla.1995) (reflecting that “[this] evidence must be limited to that which is relevant as specified in section 921.141(7)”), cert. denied, 516 U.S. 1012, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995).
CONCLUSION
In summary, we affirm Chavez's first-degree murder conviction and sentence of death. We also affirm Chavez's convictions and sentences for kidnapping and sexual battery. It is so ordered. WELLS, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur. ANSTEAD, C.J., concurs in result only as to conviction, and concurs as to sentence. SHAW and PARIENTE, JJ., concur in result only.
Chavez v. State, 12 So.3d 199 (Fla. 2009). (PCR)
Background: Defendant moved for postconviction relief after Supreme Court, 832 So.2d 730, affirmed on appeal his convictions for first-degree murder, kidnapping, and sexual battery and death sentence. The Circuit Court, Dade County, Marc Schumacher, J., denied relief. Defendant appealed and petitioned for writ of habeas corpus.
Holdings: The Supreme Court held that: (1) attorney was not qualified to testify as expert on Cuban criminal justice system; (2) defense counsel was not ineffective during penalty-phase; (3) defense counsel was not per se ineffective; and (4) appellate counsel was not ineffective for failing to challenge lethal-injection protocol. Affirmed and writ denied.
PER CURIAM.
Juan Carlos Chavez appeals the denial of his motion to vacate a judgment of conviction of first-degree murder and sentence of death under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. Pursuant to our mandatory jurisdiction to review final orders arising from capital proceedings, we affirm the circuit court's order and deny the habeas petition. See art. V, § 3(b)(1), (9), Fla. Const.
PROCEEDINGS TO DATE
In 1998, Chavez was convicted of the first-degree murder, kidnapping, and sexual battery of Samuel James (“Jimmy”) Ryce. Chavez confessed that on the afternoon of September 11, 1995, he abducted Jimmy at gunpoint from a school bus stop in the Redlands, a rural area of South Miami-Dade County, and proceeded to sexually assault Jimmy before fatally shooting the nine-year-old boy. See Chavez v. State, 832 So.2d 730, 738 (Fla.2002).FN1 He was arrested in December of 1995, after his employer found Jimmy's book bag and textbooks inside a trailer occupied by Chavez. See id. at 737. FN1. Further factual details can be found in this Court's decision on direct appeal. See Chavez v. State, 832 So.2d 730 (Fla.2002).
A team from the Miami-Dade Public Defender's Office represented Chavez during his capital trial, which was held in Orange County from August through September 1998. The jury entered a guilty verdict on each of the charged offenses. See id. at 747. Following the penalty phase of the trial, the jury recommended death by a unanimous vote. See id. In accord with this recommendation, the trial court imposed a death sentence for the murder and consecutive terms of life imprisonment with three-year mandatory minimum sentences for the kidnapping and sexual battery convictions. See id. FN2 Chavez sought review in this Court, which affirmed his convictions and sentences. See id.FN3
FN2. In determining that the death sentence was appropriate, the trial court found the following aggravating circumstances: (1) that the murder was committed while Chavez was engaged in the commission of, or in an attempt to commit or escape after committing, the crime of kidnapping; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (3) that the murder was especially heinous, atrocious, or cruel (“HAC”). See Chavez, 832 So.2d at 767 n. 44. In addition, the trial court found the following statutory mitigating circumstances: (1) his family background and good family relationship (some weight); (2) his political and economic background (little weight); (3) his good employment and ability to work and earn a living (some weight); and (4) his ability to establish and maintain positive relationships (some weight). See id. The trial court also found the following additional mitigating circumstances: (1) his good jail conduct and courtroom demeanor (very little weight); and (2) his lack of a prior history of violence (some weight). See id.
FN3. Chavez raised the following issues during his direct appeal: (1) the police lacked probable cause to arrest him; (2) his confession should have been suppressed as involuntary for several reasons, including his alienage; (3) photographing of jurors' faces by the media denied him a fair trial; (4) the trial court erred in admitting a bloodstained mattress unrelated to the case; (5) the trial court erred in denying his motion for judgment of acquittal on the capital sexual battery charge because the State failed to prove the corpus delicti of the crime; (6) the trial court erred in admitting cumulative photographs of the victim's body; (7) the trial court erred in giving certain jury instructions; (8) the State improperly diminished the role of the jury during voir dire and the penalty phase; (9) several related claims that challenged the constitutionality of Florida's capital sentencing scheme; (10) the death sentence was disproportionate; and (11) Florida's capital sentencing scheme violated Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Chavez, 832 So.2d at 747-48, 758, 760, 762-64, 766-67 n. 45.
In 2004, Chavez filed a motion to vacate his convictions and sentences pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court issued an order that summarily denied all but eleven claims, for which it granted an evidentiary hearing. However, during the evidentiary hearing, counsel abandoned or waived several claims.FN4 Accordingly, the postconviction court considered evidence with regard to the following claims: (1) Chavez's confession and the evidence presented during his trial were inconsistent; (2) Chavez was not involved in the defense; (3) counsel advised Chavez to testify falsely concerning his watch; (4) counsel failed to locate a witness who owned and lived in the place where the murder occurred and who would have testified that he was the owner of the items recovered from that location; (5) counsel failed to consult with Chavez with regard to preparation for the penalty phase; (6) counsel failed to provide the best defense possible because of interference from the Miami-Dade Public Defender based on concern about the political consequences of the defense; (7) counsel failed to investigate and call witnesses to present evidence that Chavez involuntarily waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (9) counsel failed to present a witness who could have provided testimony with regard to mental health mitigation. After a full hearing, the postconviction court entered an order that denied the remaining claims.
FN4. Counsel waived the following claims: (1) the prosecuting attorney was not a member of the State Attorney's Office during the trial; (2) trial counsel failed to obtain the fingerprints of an individual for comparison to a print found on a firearm retrieved from Chavez's trailer; and (3) counsel failed to introduce a foreign police report that established the period Chavez spent in a Cuban jail.
In his appeal of this denial, Chavez asserts that (1) the postconviction court erred in ruling that a lawyer who had studied the Cuban legal system was not qualified to offer opinion testimony concerning the Cuban and American criminal justice systems; (2) the postconviction court erred in determining that counsel was effective despite the failure to present evidence of mental health mitigation through the testimony of a psychologist; and (3) there was a per se denial of effective assistance of trial counsel because discord amongst the defense team rendered the adversarial process inherently unreliable. In his habeas petition, Chavez argues that (1) ineffective appellate representation occurred during the direct appeal for the failure to challenge the constitutionality of Florida's lethal-injection protocol; (2) counsel failed to assert that Florida's standard penalty-phase jury instructions unconstitutionally shift the burden of proof to the defendant; (3) counsel failed to challenge the penalty-phase jury instructions with regard to minimizing and denigrating the role of the jury; and (4) cumulative errors deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.
ANALYSIS OF THE RULE 3.851 APPEAL
Alienage Claim
During the evidentiary hearing, Chavez sought to introduce the testimony of Michael Amezaga, a Florida attorney with an interest in the Cuban criminal justice system. The asserted purpose of this expert testimony was to demonstrate that Chavez involuntarily waived his Miranda rights because he misunderstood the nature of the rights afforded under the American legal system in contrast to those of the Cuban legal system. The postconviction court did not qualify the witness as an expert on the basis that he lacked the requisite level of knowledge concerning the comparative study of the Cuban and American criminal justice systems. Chavez was thus unable to present this evidence in support of his claim of ineffective representation for the failure to present testimony during the suppression hearing that Chavez's alienage affected his ability to voluntarily waive his Miranda rights. Here, Chavez asserts that the postconviction court erred in this determination because the witness held the proper knowledge and expertise to testify on the subject of alienage.
It is within the court's discretion to determine the qualifications of a witness to express an expert opinion, and this determination will not be reversed absent a clear showing of error. See Brooks v. State, 762 So.2d 879, 892 (Fla.2000). Before an expert may render an opinion, the witness must satisfy a four-prong test of admissibility. Section 90.702, Florida Statutes (2007), provides: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. This section requires the court to make two preliminary determinations: (1) whether the subject matter will assist the trier of fact in understanding the evidence or in determining a disputed fact, and (2) whether the witness is adequately qualified to express an opinion on the matter. See Huck v. State, 881 So.2d 1137, 1149 (Fla. 5th DCA 2004). Once these threshold determinations are affirmatively satisfied, two more requirements must be satisfied for the admission of expert opinion testimony. The expert opinion must apply to evidence presented during the hearing, and the danger of unfair prejudice must not substantially outweigh the probative value of the opinion. See Glendening v. State, 536 So.2d 212, 220 (Fla.1988).
The present case involves only the second determination-that is, whether the witness was qualified to express an opinion on the subject matter to be addressed. A witness may be qualified as an expert through specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge. An expert witness may acquire this specialized knowledge through an occupation or business or frequent interaction with the subject matter. See Weese v. Pinellas County, 668 So.2d 221, 223 (Fla. 2d DCA 1996) (citing Harvey v. State, 129 Fla. 289, 176 So. 439, 440 (1937) (witnesses were qualified as expert cattlemen and butchers based upon many years of experience in such business and occupation and knowledge acquired thereby)). However, general knowledge is insufficient. The witness must possess specialized knowledge concerning the discrete subject related to the expert opinion to be presented. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 686-87 (2008 ed.).
Mr. Amezaga's qualifications and proffered testimony consisted of some research, two visits to Cuba, which involved research and discussions with Cuban lawyers, and one discussion with Chavez. Chavez suggests that the qualifications of his expert were similar to those of the witness found sufficient in Brooks v. State, 762 So.2d 879 (Fla.2000). In addressing the matter as one of first impression, we held in Brooks that the trial court did not err in ruling that an experienced dealer of crack cocaine was qualified to testify as an expert with regard to the identity and approximate weight of a rocky substance contained in a sandwich bag. See id. at 891-94. In reaching this conclusion, we reviewed decisions from Florida and other jurisdictions that qualified police officers or experienced drug dealers and users as narcotics-identification experts. See, e.g., United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.1993); A.A. v. State, 461 So.2d 165, 165-66 & n. 1 (Fla. 3d DCA 1984). Here, Chavez has not submitted decisions concerning whether a witness could be qualified as an expert with regard to legal systems or how that expertise, even if it existed, might translate into expertise on the subject here.
Moreover, the cases considered in Brooks identified a consistent factor in witness qualification, which was the witness's familiarity and experience with the narcotic acquired through frequent and prolonged exposure to the drug. For instance, the witness in Brooks was an experienced crack-cocaine dealer because he had sold the drug almost every day for approximately two years. The witness had personally observed the bag containing the rocky substance that he was identifying, and he was afforded an opportunity to examine and inspect the substance. The witness was qualified as an expert because he had acquired experience through the longevity and frequency of his exposure to the pertinent and non-mainstream subject matter. Applying a similar analysis here, the court did not err in refusing to qualify Mr. Amezaga as an expert witness based on his proffered qualifications. Mr. Amezaga's qualification as a lawyer did not qualify him to testify as an expert on suppression issues in American criminal law, much less on the Cuban criminal justice system or how the difference between the two may have affected Chavez.
Although an expert may also be qualified through study or practical experience, rather than education or formal training, there must be sufficient development of specialized knowledge in the subject matter. See Allen v. State, 365 So.2d 456, 458 (Fla. 1st DCA 1978) (holding that the trial court abused its discretion in determining that a witness was not qualified to testify as an expert because he did not hold a doctoral degree). The expert must have adequate experience with the subject matter. See Robinson v. State, 818 So.2d 588, 589 (Fla. 5th DCA 2002). The qualifications proffered by Chavez do not demonstrate that Mr. Amezaga had sufficiently developed specialized knowledge of, or that he had adequate experience with, the comparative study of the Cuban and American legal systems and how the significant differences would affect a defendant's waiver of rights under Miranda. In Jordan v. State, 694 So.2d 708 (Fla.1997), we held that the trial court abused its discretion in allowing a witness to testify with regard to matters beyond her area of expertise. See id. at 715 (citing Hall v. State, 568 So.2d 882, 884 (Fla.1990)). The witness testified with regard to offender-profile evidence, which was an area she had not definitively focused on during her education in psychology and counseling. We stated that her educational degrees did not qualify her to testify about complicated profile evidence drawn from scientific literature. Furthermore, her experiences did not qualify her as an expert in offender-profile evidence because, at the time of her testimony, she was not working with, compiling, or studying profile evidence, and she based her opinion solely on research gathered in the library and from the literature that she had reviewed. We stated:
There is no absolute prohibition against qualifying an expert based upon “his or her study of authoritative sources without any practical experience in the subject matter.” Ehrhardt, § 702.1, at 512 [ (1995 ed.) ] The problem in this case is that [the witness] did not demonstrate, in the record, a sufficient study of the scientific literature. Simply reading large amounts of scientific literature, all of which falls well outside a person's area of educational expertise, cannot serve to create an expert out of a non-expert. Jordan, 694 So.2d at 716. Similarly, the foundation of Mr. Amezaga's understanding of the Cuban legal system originated from reading that country's statutes and constitution. There is no abuse of discretion in the court's determination that the reading of large amounts of legal literature beyond Mr. Amezaga's expertise, which was American criminal law, did not qualify him as an expert in the Cuban legal system. Based on the proffered testimony and qualifications presented, we conclude that the court did not abuse its discretion in determining that the witness lacked sufficient knowledge, training, or education to render an expert opinion with regard to the differences between Cuban and American law and the alleged impact of Chavez's alienage on the voluntariness of his confession.
Even if Mr. Amezaga was qualified to testify, the proffered testimony does not demonstrate a reasonable probability of altering the outcome of the suppression hearing. During his direct appeal, Chavez asserted that he could not have understood the Miranda warnings and his constitutional rights because his native country is ruled by a totalitarian dictatorship. We determined that alienage alone was not a basis to undermine an understanding of his rights. See Chavez, 832 So.2d at 751 (“The record clearly reflects that Chavez's intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation progress. Finding no support in the record, the argument that Chavez's background caused him to misapprehend his rights in the American system fails.”). From the proffered testimony, which was submitted after the evidentiary hearing, Mr. Amezaga allegedly would have testified that the differences in the American and Cuban criminal justice systems may have affected Mr. Chavez's understanding of the Miranda rights. Since Mr. Chavez did not have access to a court appointed attorney during his contacts with the Cuban Criminal Justice System, he may have very well expected to not have a court appointed lawyer at the time that he was questioned. Also, since Mr. Chavez did not have the right to remain silent when he was interrogated in Cuba, he likewise could have expected to not have this important right when he was interrogated by police. (Emphasis supplied.) This proffer does not present admissible evidence that alienage affected the voluntariness of the Miranda waiver involved here. We have already determined on direct appeal that Chavez's intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation process. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on an ineffective assistance claim, Chavez must demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine our confidence in the verdict. See 466 U.S. at 694, 104 S.Ct. 2052. The proffered testimony does not satisfy that burden. Thus, even if Mr. Amezaga qualified as an expert witness, Chavez would not be able to satisfy the prejudice prong of Strickland based on this proffered testimony. Chavez entered a knowing, intelligent, and voluntary waiver. We affirm the postconviction court's denial of this claim.
Mental Health Mitigation
Chavez next claims that he received ineffective assistance of counsel during the penalty phase because counsel failed to investigate and present evidence of mental health mitigation. Specifically, Chavez asserts ineffective assistance based on the failure to present the testimony of Dr. John Quintana, who was initially hired to investigate potential mitigation evidence but was not presented as a witness because trial counsel feared that his testimony would insult the jury and be detrimental on cross-examination.
In applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have held that for claims of ineffective assistance to succeed, two requirements must be satisfied: First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). There is a strong presumption that trial counsel's performance was effective, and judicial scrutiny of counsel's performance must be highly deferential. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). In conducting this review, we afford deference to the postconviction court's findings of fact if they are supported by competent, substantial evidence, while we review the legal claims de novo. See Connor v. State, 979 So.2d 852, 858 (Fla.2007).
With regard to presentation of mitigation evidence, defense counsel must certainly consider all phases of a capital proceeding and strive to avoid a counterproductive course. See Florida v. Nixon, 543 U.S. 175, 191-92, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In Straight v. Wainwright, 422 So.2d 827 (Fla.1982), the defendant challenged his trial counsel's failure to further investigate mitigating evidence. There, trial counsel testified that he did not present certain mitigation because, in his view, that evidence would have been fundamentally inconsistent with the entire defense. See id. This Court concluded that trial counsel's performance was not ineffective where trial counsel reasonably viewed the mitigating evidence to be fundamentally damaging to the integrity of the defense. See id.
Here, limitations were imposed on counsel due to Chavez's refusal to provide certain facts with regard to his background. Additionally, conflict with guilt-phase strategy presented obstacles. During the evidentiary hearing, counsel testified that he balanced the benefit of presenting Dr. Quintana's testimony against the risk created by the defense theory of innocence. After conducting this balancing analysis, trial counsel did not present Dr. Quintana as a witness because (1) the psychological testing revealed that although Chavez did not completely reach the criteria for socio-or psychopathy, his score was heightened in that area; (2) Dr. Quintana asserted that it was unlikely Chavez acted alone, which could possibly reveal that Chavez had a homosexual lover and potential accomplice; (3) Dr. Quintana's finding that Chavez was not a pedophile was in conflict with the jury's determination that Chavez was guilty of sexual battery on a nine-year-old boy; and (4) Dr. Quintana did not conduct a follow-up evaluation of Chavez prior to trial.
In Dr. Quintana's initial evaluation of Chavez prior to trial, Chavez scored a 67 on the psychopathic deviant scale, which was dangerously close to the score (i.e., 70) which would classify Chavez as a psychopath or as having a psychopathic personality. During the evidentiary hearing, the State demonstrated that Chavez's score might have increased if Chavez had answered one or more questions differently. Dr. Quintana also agreed that under a different testing rubric, Chavez might have received an elevated score to place him in a category of danger. With regard to the pedophilia results, counsel testified that a cross-examination inquiry during the penalty-phase proceedings would have likely addressed the inconsistency of the results in light of the jury's determination that Chavez had committed sexual battery on a minor. Trial counsel stated: “Obviously if [Chavez] committed the crime then ... you would have to concede that he was a pedophile, which means that it would not validate [Dr. Quintana's] psychological opinion.” This potential attack occurred during the postconviction evidentiary hearing, when Dr. Quintana was heavily impeached on cross-examination with the detailed confession of Chavez to the sexual battery. In response, Dr. Quintana admitted that either Chavez lied to the police concerning his pedophilia or he had been untruthful on the psychological test.
Under these circumstances, counsel cannot be deemed ineffective for not presenting testimony that would have alienated the penalty-phase jury. This was a reasonable strategic decision based upon a belief that Dr. Quintana's testimony would have inflicted more harm from impeachment than it would have assisted the penalty-phase presentation. See Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“[I]n those cases where counsel did conduct a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information, we have affirmed the trial court's findings that counsel's performance was not deficient.”). Even if the psychological evaluation of Chavez here did not result in a score above 70, the jury could have reasonably correlated the close proximity of the score to the level of establishing psychopathy. See Freeman v. State, 858 So.2d 319, 327 (Fla.2003) (concluding that antisocial personality disorder is a trait that most jurors tend to view unfavorably).
In addition, counsel was not deficient for failing to present mitigation testimony based on the client's self-imposed limitations. Lead counsel testified that it was necessary to mislead Chavez to convince him to even confer with Dr. Quintana because Chavez did not want to present penalty-phase mitigation. At first, lead counsel informed Chavez that Dr. Quintana was only going to evaluate him as it related to the guilt phase. When the time to conduct a follow-up interview arrived, lead counsel testified that Chavez refused to participate. Even if this evidence could have been presented during a SpencerFN5 hearing, Chavez refused to participate in the follow-up interview that Dr. Quintana requested. Thus, there was no avenue for counsel to acquire the necessary follow-up information to supplement Dr. Quintana's report. Based on the record, the postconviction court correctly ruled that there was no deficient performance by counsel for the strategic decision that the testimony of Dr. Quintana not be presented. FN5. Spencer v. State, 615 So.2d 688 (Fla.1993).
Further, Chavez did not demonstrate that the failure to present Dr. Quintana as a mitigation witness created circumstances which undermine our confidence in the proceeding here, given the substantial aggravation and the relatively insignificant and possibly detrimental impact of that testimony. Cf. Hitchcock v. State, 991 So.2d 337, 358 (Fla.2008); Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000). The trial court here found three aggravating factors, one of which was that the capital felony was especially heinous, atrocious, or cruel. Though the trial court found several mitigating factors, including that the defendant lacked a prior history of violence, the court concluded that “the quality of the aggravating factors in this case greatly outweigh the mitigating circumstances. The strength of the aggravating circumstances in this case are so overwhelming that they make the mitigating circumstances appear insignificant by comparison.” Chavez, 832 So.2d at 766 n. 44 (emphasis supplied). Furthermore, on direct appeal, this Court upheld Chavez's sentence as proportional. See Chavez, 832 So.2d at 766-67. Dr. Quintana's testimony with regard to Chavez's bookish, non-violent personality does not create a reasonable probability that, with his testimony, the outcome of the penalty phase would have been different. See Cherry, 781 So.2d at 1048. Thus, we affirm the postconviction court's denial of this claim because the strategic decision to not present Dr. Quintana as a mitigation witness was based on Chavez's wishes and a reasonable evaluation of the potentially negative impact of the testimony. Furthermore, the testimony presented by Chavez does not undermine our confidence in the outcome of the penalty phase given the substantial aggravation and the relatively insignificant and possibly detrimental impact of this testimony.
Per Se Ineffective Assistance of Counsel
Chavez asserts that trial counsel's actions were ineffective per se under the standard articulated in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Chavez places the majority of the alleged errors on the decisions made by lead counsel and advances that the failure of co-counsel to challenge lead counsel's decisions demonstrated a per se denial of the effective assistance of counsel. Specifically, Chavez frames the conflict between the attorneys concerning the proper mitigation strategy as a conflict of interest that affected the adequacy of his representation. In denying the individual errors asserted below, the postconviction court noted that each claim failed to demonstrate deficient performance or prejudice and there was no evidence to establish a lack of harmony within the defense team. Further, it was determined that Chavez had not shown prejudice from the alleged interference of the Public Defender because lead counsel testified that all depositions were taken and all investigations were ultimately completed. The postconviction court found that Chavez had not presented any credible testimony that he was denied a full legal defense by his trial counsel or that the delay in investigation affected the outcome of the trial.
The Sixth Amendment of the United States Constitution guarantees a defendant the right to be represented by counsel during criminal proceedings. This mandate has been extended to mean adequate legal assistance by a reasonably competent attorney whose advice falls within the range of competence demanded of attorneys in criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The right to competent counsel has been accorded because of the “effect it has on the ability of the accused to receive a fair trial.” Cronic, 466 U.S. at 658, 104 S.Ct. 2039. As the United States Supreme Court explained: Thus, the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. Cronic, 466 U.S. at 656-57, 104 S.Ct. 2039 (footnotes omitted).
Generally, a defendant is entitled to relief if he or she demonstrates that counsel violated this guarantee through deficient performance and that he or she was prejudiced by the deficiency. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. However, if the defendant can demonstrate that counsel “entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing,” the law will presume prejudice and deem counsel ineffective per se. Cronic, 466 U.S. at 659, 104 S.Ct. 2039. For instance, constitutional error is found without a showing of prejudice when counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or had a conflict of interest that affected the adequacy of representation. See id. at 659 n. 25, 104 S.Ct. 2039. Apart from these rare circumstances, the Cronic standard is a narrow exception to Strickland that is reserved for situations where counsel has entirely failed to function as the client's advocate. See Florida v. Nixon, 543 U.S. 175, 189-90, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (holding that this Court erred in determining that counsel's concession of the client's guilt qualified as such a failure).
Here, the totality of the defense team's efforts does not demonstrate a complete failure to subject the State's case to a meaningful adversarial testing such that the denial of Sixth Amendment rights rendered the adversary process itself presumptively unreliable. Chavez's specific allegation that lead counsel's strategy created an absolute failure of the adversarial system does not qualify under the Cronic exception to Strickland. Despite Chavez's earnest attempt to portray lead counsel as a one-man threat to the adversarial system, none of the cases advanced by Chavez support this interpretation of the per se rule because each decision is either distinguishable or inapplicable to these circumstances. See Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (discussing conflict of interest where counsel had previously represented the victim in the defendant's case); Crist v. Fla. Ass'n of Crim. Defense Lawyers, Inc., 978 So.2d 134, 148 (Fla.2008) (holding that the mere creation of the Office of Criminal Conflict and Civil Regional Counsel did not implicate the Sixth Amendment right to effective representation); Hatten v. State, 561 So.2d 562, 565 (Fla.1990) (holding that due to an excessive backlog of cases, the public defender failed to provide the defendant with effective representation); Gorham v. State, 521 So.2d 1067 (Fla.1988) (addressing summary denial of postconviction claim without any mention of per se ineffectiveness); Makemson v. Martin County, 491 So.2d 1109, 1111 (Fla.1986) (holding that an arbitrary fee cap unconstitutionally affected a defendant's Sixth Amendment right by prohibiting the trial court from compensating counsel for the time necessary to provide the defendant with effective representation).
The Cronic standard is reserved for situations where the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the “likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237. This presumption functions to protect the right of an accused to a fair trial because the failure to receive such assistance jeopardizes the functioning of the adversarial system as a whole. Despite lead counsel's assertion that the Miami-Dade Public Defender attempted to curtail the defense team's investigation, the record contains sufficient evidence that any alleged internal constraints did not limit counsel's ability to provide effective representation. Unlike the defendant in Cronic, Chavez was represented by a team of experienced capital defenders. This team aggressively tested the State's case by conducting depositions, filing motions, conducting cross-examination, and presenting a defense. Thus, the representation was not ineffective for the alleged failure to subject the prosecution's case to meaningful adversarial testing.
Furthermore, the alleged conflict between counsel concerning the proper strategy to pursue during the penalty phase does not fall under the conflict-of-interest cases deemed to demonstrate per se ineffective assistance of counsel. Prejudice may be presumed when counsel labors under an actual conflict of interest, despite the fact that the constraints on counsel in that context are entirely self-imposed. See Cuyler, 446 U.S. at 335, 100 S.Ct. 1708. Conflict of interest generally occurs when an attorney actively represents conflicting interests, not when a defense team considers conflicting strategic approaches. See, e.g., Mickens, 535 U.S. at 166-172, 122 S.Ct. 1237 (examining cases that found presumptive ineffective assistance when the defendant's attorney actively represented conflicting interests, which were Cuyler, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)). Thus, there is no merit to Chavez's allegation that any alleged internal debate over strategy rose to the magnitude of per se ineffective assistance.
Chavez cannot rely on the per se rule from Cronic to avoid establishing prejudice for each of the claims denied by the postconviction court. This case is not one in which the surrounding circumstances make it unlikely that Chavez received effective assistance of counsel. Therefore, we deny this claim because counsel's actions do not qualify as per se ineffectiveness under the narrow Cronic exception to Strickland.
ANALYSIS OF THE PETITION FOR WRIT OF HABEAS CORPUS
In his habeas petition, Chavez asserts that counsel rendered ineffective assistance during his direct appeal by failing to challenge the constitutionality of Florida's lethal-injection protocol and Florida's standard penalty-phase jury instructions. Chavez further alleges that appellate counsel's repeated instances of deficient performance deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. We reject each of these claims.
The Constitutionality of Lethal Injection as Administered in Florida
During January of 2000, the Legislature adopted legislation which created lethal injection as a mode of execution in Florida. On direct appeal, Chavez's amended initial brief was filed with this Court during April of 2000, approximately three months after these legislative changes. Chavez asserts that appellate counsel rendered ineffective assistance by failing to challenge Florida's lethal-injection protocol as an unconstitutional mode of execution. Chavez also requests that we reexamine our holdings in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), cert. denied, --- U.S. ----, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008), and related decisions, in light of the United States Supreme Court's decision in Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). The defendant has the burden of affirmatively establishing each prong of the Strickland standard. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In addition, capital defendants may not use claims of ineffective assistance of appellate counsel to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Moreover, appellate counsel cannot be ineffective for failing to raise a meritless issue. See Lawrence v. State, 831 So.2d 121, 135 (Fla.2002); see also Kokal v. Dugger, 718 So.2d 138, 142 (Fla.1998) ( “Appellate counsel cannot be faulted for failing to raise a nonmeritorious claim.”).
At the time of the direct appeal in this case, there was simply no basis upon which to present a mode-of-execution challenge to Florida's original lethal-injection protocol. The protocol was new, unimplemented, and widely regarded as a humane, civilized alternative to death by electrocution. Cf. Baze, 128 S.Ct. at 1525-26, 128 S.Ct. 1520 (“States [that impose the death penalty have] altered [their] method[s] of execution over time to more humane means of carrying out the[se] sentence[s]. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.”). To the extent that Chavez disputes the constitutionality of Florida's current lethal-injection protocol, we have repeatedly rejected such Eighth Amendment challenges. See Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008), cert. denied, --- U.S. ----, 129 S.Ct. 1305, --- L.Ed.2d ---- (2009); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Schwab v. State, 995 So.2d 922, 933 (Fla.2008), petition for cert. filed, No. 08-5020 (U.S. June 30, 2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.), cert. denied, --- U.S. ----, 129 S.Ct. 607, 172 L.Ed.2d 465 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007). Finally, with regard to reliance upon Baze, this Court recently reaffirmed that “Florida's current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court.” Ventura v. State, 2 So.3d 194, 200 (Fla.2009), petition for cert. filed, No. 08-10098 (U.S. Apr. 16, 2009). Thus, we deny this habeas claim.
Constitutionality of Penalty-Phase Jury Instructions
This Court has repeatedly rejected claims that the standard jury instructions impermissibly shift the burden to the defense to prove that death is not the appropriate sentence or that these instructions unconstitutionally denigrate the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See, e.g., Taylor v. State, 937 So.2d 590, 599 (Fla.2006) (citing Elledge v. State, 911 So.2d 57, 79 (Fla.2005); Mansfield v. State, 911 So.2d 1160, 1180 (Fla.2005); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002)); Carroll v. State, 815 So.2d 601, 622-23 (Fla.2002); Rutherford v. Moore, 774 So.2d 637, 644 & n. 8 (Fla.2000); Downs v. State, 740 So.2d 506, 517 n. 5 (Fla.1999); San Martin v. State, 705 So.2d 1337, 1350 (Fla.1997); Shellito v. State, 701 So.2d 837, 842 (Fla.1997); Sochor v. State, 619 So.2d 285, 291 (Fla.1993); Turner v. Dugger, 614 So.2d 1075, 1079 (Fla.1992); Combs v. State, 525 So.2d 853, 855-58 (Fla.1988). Appellate counsel cannot be ineffective for failing to raise a meritless issue. See, e.g., Lawrence, 831 So.2d at 135. Accordingly, we deny these habeas claims.
Cumulative Error
Chavez asserts that appellate counsel's repeated instances of deficient performance during his direct appeal deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. This Court has held that “where individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.” Griffin v. State, 866 So.2d 1, 22 (Fla.2003); see also Dufour v. State, 905 So.2d 42, 65 (Fla.2005). Each of the claims raised by Chavez is without merit. Therefore, we deny Chavez's habeas petition.
CONCLUSION
For the reasons stated above, we affirm the postconviction court's order denying Chavez's amended rule 3.851 motion, and we deny his petition for writ of habeas corpus. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur. PERRY, J., did not participate.
Chavez v. Secretary, 647 F.3d 1057 (11th Cir. 2011). (Habeas)
Background: Following affirmance of convictions for kidnapping, sadistic sexual battery, murder and sentence of death, 832 So.2d 730, petition for writ of habeas corpus was filed. The United States District Court for the Southern District of Florida, No. 1:10-cv-20399-UU, Ursula Ungaro, J., dismissed the petition. Petitioner appealed.
Holding: The Court of Appeals, Carnes, Circuit Judge, held that petitioner was not entitled to an evidentiary hearing on equitable tolling. Affirmed.
CARNES, Circuit Judge:
Just as time waits for no one, there are limits on how long our legal system will wait for anyone to bring a claim. Those limits are expressed in and enforced by statutes of limitations and doctrines of repose. The statute of limitations involved in this case is the one that requires a prisoner seeking federal habeas corpus relief to file the petition within one year after the conclusion of his direct appeal. See 28 U.S.C. § 2244(d). The statute itself provides that the time spent litigating a properly filed state collateral attack does not count against the petitioner, see id. § 2244(d)(2), and the Supreme Court has decided that in extraordinary circumstances, and when the petitioner has shown reasonable diligence, equitable tolling may apply to prevent other time from counting. This appeal is about that doctrine and whether it applies under the circumstances of this case.
I.
Juan Carlos Chavez was convicted and sentenced to death for the kidnapping, sadistic sexual battery, and murder of a nine-year-old child. See Chavez v. State, 832 So.2d 730, 736–41 (Fla.2002). His convictions and sentence were affirmed on direct appeal, see id., and the Supreme Court denied certiorari in June of 2003. Chavez filed a motion for post-conviction relief in state court in May of 2005, and the Florida Supreme Court affirmed the trial court's denial of that motion in June of 2009. See Chavez v. State, 12 So.3d 199 (Fla.2009). In February 2010 Chavez filed in federal court a 28 U.S.C. § 2254 petition for writ of habeas corpus. But he had a serious problem: his petition was not filed within the one-year period specified in 28 U.S.C. § 2244(d)(1), the statute of limitations provision of the Anti–Terrorism and Effective Death Penalty Act.
Recognizing that problem, in his belated federal habeas petition Chavez alleged facts that he contended entitled him to enough equitable tolling to bring its filing within the statute of limitations. His petition requested an evidentiary hearing so that he could prove those factual allegations. The district court denied the request for an evidentiary hearing and dismissed the petition on statute of limitations grounds, reasoning that even if all of the allegations in the petition were true, Chavez still would not be entitled to enough equitable tolling to bring the filing within the one-year limitations period. This is his appeal of that dismissal.
II.
Chavez filed his 86-page petition for writ of habeas corpus under 28 U.S.C. § 2254 on February 9, 2010. He spent much of the first twenty pages of that petition spelling out his position that he was entitled to equitable tolling of the statute of limitations. He alleged various facts about his post-conviction counsel and what had occurred between the affirmance of his convictions and sentence on direct appeal in 2002 and the issuance of the mandate for the Florida Supreme Court's decision in 2009 affirming the trial court's denial of his motion for post-conviction relief. After alleging those facts and contending that they justified equitable tolling, Chavez requested an evidentiary hearing in order “to be given the opportunity to establish his entitlement” to the tolling he sought.
The district court issued an order requiring the State of Florida to file a memorandum of fact and law showing cause why the petition should not be granted. The court directed that the memorandum: be accompanied by a comprehensive appendix, which shall include copies of: 1) all relevant state trial and appellate court pleadings; 2) transcripts of the petitioner's trial or plea colloquy; 3) briefs filed on direct appeal; 4) motions seeking relief pursuant to Fla. R.Crim. P. 3.850, including transcripts of collateral evidentiary hearings, and briefs from any ensuing appeal; 5) state habeas corpus applications and briefs from any ensuing appeal; [and] 6) records of any other state collateral proceedings that may be relevant to the federal issues.... In compliance, the State filed a 130-page response. Before addressing the merits of Chavez's § 2254 petition, the State argued that the petition had not been timely filed and that Chavez was not entitled to equitable tolling. With respect to Chavez's request for an evidentiary hearing on the issue of equitable tolling, the State argued that because the allegations of his petition were “insufficient as a matter of law to warrant equitable tolling,” he was not entitled to a hearing on the issue. The State also submitted to the district court a voluminous record, consisting of nine boxes that contained well over 25,000 pages of documents.
The district court entered an order dismissing Chavez's habeas petition on statute of limitations grounds, agreeing with the State that the petition was not timely filed and rejecting Chavez's argument that he had pleaded enough facts to state a viable claim to equitable tolling. The order explained that Chavez was not entitled to an evidentiary hearing on the issue because even if everything he alleged in his petition were true, those allegations would not entitle him to equitable tolling of enough time to make his petition timely. The district court did, however, grant a certificate of appealability so that this Court could consider “whether [Chavez] demonstrated that he is entitled to equitable tolling of the one-year limitations period imposed by 28 U.S.C. § 2244(d)(1).”
III.
We review the district court's denial of equitable tolling de novo, Drew v. Dep't of Corr., 297 F.3d 1278, 1283 (11th Cir.2002), and we review its denial of an evidentiary hearing only for an abuse of discretion, id. at 1292. In the present case those two standards of review blend together into this: if we agree with the district court that the facts alleged in the habeas petition are not enough to make Chavez's petition timely under 28 U.S.C. § 2244(d), then it was not an abuse of discretion for the district court to deny him an evidentiary hearing, and the court did not err by dismissing his petition.
IV.
In a habeas corpus proceeding “[t]he burden is on the petitioner ... to establish the need for an evidentiary hearing.” Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984) (en banc); see also Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.1982) (“We emphasize that the burden is on the petitioner in a habeas corpus proceeding to allege sufficient facts to support the grant of an evidentiary hearing and that this court will not blindly accept speculative and inconcrete claims as the basis upon which a hearing will be ordered.” (quotation marks omitted)).
“In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007). That means that if a habeas petition does not allege enough specific facts that, if they were true, would warrant relief, the petitioner is not entitled to an evidentiary hearing. Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 763 (11th Cir.2010) (“Having alleged no specific facts that, if true, would entitle him to federal habeas relief, Allen is not entitled to an evidentiary hearing.”); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) (“While the district court is required to conduct an evidentiary hearing in certain circumstances, such a hearing is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief.”). FN1. AEDPA does contain additional restrictions on a federal court granting an evidentiary hearing in a state prisoner's habeas proceeding. See 28 U.S.C. § 2254(e)(2); Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); see also, Schriro, 550 U.S. at 474, 127 S.Ct. at 1940 (“Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.”). Those additional restrictions do not, however, apply to the § 2244(d) statute of limitations tolling issues before us, because whether the statute is equitably tolled is a purely federal issue, which did not arise until Chavez's federal habeas petition was filed.
The allegations must be factual and specific, not conclusory. Conclusory allegations are simply not enough to warrant a hearing. San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir.2011) (“ ‘An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.’ ”) (quoting Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir.2006)); see also Boyd v. Allen, 592 F.3d 1274, 1306–07 (11th Cir.2010) (“On this scant record, we cannot say that Boyd's allegations amount to anything more than the merely conclusory, nor that the district court has abused its considerable discretion in failing to hold a hearing on his claim.” (citations omitted)).
Of course, all of these principles of law would mean nothing if district courts were required to mine the record, prospecting for facts that the habeas petitioner overlooked and could have, but did not, bring to the surface in his petition. Making district courts dig through volumes of documents and transcripts would shift the burden of sifting from petitioners to the courts. With a typically heavy caseload and always limited resources, a district court cannot be expected to do a petitioner's work for him. Cf. Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1481 n. 12 (11th Cir.1997) (noting in a civil case that, absent plain error, “it is not our place as an appellate court to second guess the litigants before us and grant them relief ... based on facts they did not relate.”); Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1373 (11th Cir.1997) (“[W]e are not obligated to cull the record ourselves in search of facts not included in the statements of fact.”). The Seventh Circuit memorably said that appellate judges “are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Likewise, district court judges are not required to ferret out delectable facts buried in a massive record, like the one in this case, which was more than 25,000 pages of documents and transcripts.
V.
The district court had nothing before it relevant to the equitable tolling issue, except the dates of the principal procedural history events and the allegations in the habeas petition about why it had not been filed sooner. In its order denying an evidentiary hearing, the district court explained: Petitioner's allegations regarding the conduct of post-conviction counsel and the actions he took in response thereto are largely unsupported. Petitioner offered no exhibits in conjunction with either his Petition or his Reply, and the record, provided by Respondent, understandably does not include evidence of the communications that transpired between Chavez and his counsel. Additionally, Petitioner has not supplied the Court with counsel's motions to withdraw or the state court's orders disposing of those motions. Petitioner has requested an evidentiary hearing to prove the facts alleged; however, because Petitioner's allegations, even if true, do not warrant equitable tolling, no evidentiary hearing and no supplementation of the record are required. Doc. 22 at 6 n.4.FN2 Thus, the equitable tolling issue rises or falls with the allegations of the petition read against the procedural history of the case.
FN2. Before oral argument, we asked the parties to respond to those statements from the district court's order. The parties filed a joint response to our memoranda, providing us with 36 different supplemental documents. See Joint Response to Court Memoranda Directing Parties to Supplement the Record. Following oral argument, we asked the parties to clarify whether some of those supplemental documents that related to Chavez's three sets of post-conviction attorneys had been or had not been before the district court when it issued its decision in this case. In their responses, the parties agreed that the supplemental documents we asked about, with one irrelevant exception, had not been in the record before the district court or otherwise provided to that court. See Petitioner–Appellant's Response to May 20, 2011, Memorandum to All Counsel; Reply to Petitioner's Response to Court Directive of May 20, 2011. The supplemental documents the parties provided to us that were related to Chavez's post-conviction counsel were not in the vast record of well over 25,000 pages of documents and transcripts that were put before the district court. See id.
As a result, we will not consider those documents in determining whether the district court abused its discretion in denying an evidentiary hearing based on the record materials that were before it. Sammons v. Taylor, 967 F.2d 1533, 1544 (11th Cir.1992) (“[A]s a general rule, an appellate court will not consider arguments or evidence not presented to the district court.”); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1258 n. 12 (11th Cir.2007) (“Because this evidence is not part of the record below, we do not consider it here.”); Lee Cnty. Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1481 (11th Cir.1984) (“[A]bsent extraordinary circumstances, federal appellate courts will not consider evidence that was not part of the trial record.”); see also Smith v. Sec'y, Dep't of Corr., 572 F.3d 1327, 1352 (11th Cir.2009) (“Because the issue or argument was not properly presented to the district court, we will not decide it.”).
A.
The habeas petition recounts the primary events in the procedural history, which frame the issue before us. Those events are these: The Florida Supreme Court affirmed Chavez's conviction and death sentence on November 21, 2002, Chavez v. State, 832 So.2d 730 (2002), and the United States Supreme Court denied his petition for writ of certiorari on June 23, 2003, Chavez v. Florida, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003) (mem.). Chavez filed a motion for state post-conviction relief on May 5, 2005, and an amended motion on October 4, 2006. The trial court denied his motion on March 8, 2007. Chavez then appealed the denial of post-conviction relief to the Florida Supreme Court, which affirmed the trial court's decision on June 25, 2009. Chavez v. State, 12 So.3d 199 (Fla.2009). That court issued the mandate in Chavez's case on July 21, 2009. He filed his 28 U.S.C. § 2254 petition in federal district court on February 9, 2010.
B.
The statute of limitations period began running when the United States Supreme Court denied certiorari in the direct appeal on June 23, 2003. See 28 U.S.C. § 2244(d)(1)(A). The duration of statutory tolling by virtue of § 2244(d)(2) was from May 5, 2005, when Chavez filed his motion for post-conviction relief in the state trial court, through July 21, 2009, when the Florida Supreme Court issued its mandate affirming the denial of that motion. FN3 There was no more statutory tolling after that point. FN4 See id. Chavez did not file his federal habeas petition until February 9, 2010.
FN3. This statement about statutory tolling is dependent on the assumption we are going to make that the one-year AEDPA statute of limitations had not already run out by May 5, 2005, when Chavez filed his motion for post-conviction relief in state court. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.2000) (“A state-court petition ... that is filed following the expiration of the [federal] limitations period cannot toll that period because there is no period remaining to be tolled.”).
FN4. After the Florida Supreme Court issued its opinion affirming the denial of post-conviction relief, Chavez did file a petition for writ of certiorari with the United States Supreme Court. That petition was denied on November 2, 2009, Chavez v. Florida, ––– U.S. ––––, 130 S.Ct. 501, 175 L.Ed.2d 356 (2009) (mem.), but the filing of the certiorari petition and the date it was denied are irrelevant for calculating the statutory tolling of AEDPA's statute of limitations. As the Supreme Court has held concerning petitions for certiorari filed at the end of state collateral review: After the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state postconviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court. The application for state postconviction review is therefore not “pending” after the state court's postconviction review is complete, and § 2244(d)(2) does not toll the 1–year limitations period during the pendency of a petition for certiorari. Lawrence v. Florida, 549 U.S. 327, 332, 127 S.Ct. 1079, 1083, 166 L.Ed.2d 924 (2007).
As our recounting shows, the limitations period ran without statutory tolling for 682 days between the denial of certiorari on direct appeal on June 23, 2003, and the filing of the motion for post-conviction relief on May 5, 2005. And it ran without statutory tolling for another 203 days between the issuance of the Florida Supreme Court's mandate in the state collateral proceeding on July 21, 2009, and the filing of the federal habeas petition on February 9, 2010. In sum, the total time the limitations period ran without statutory tolling is 682 + 203 = 885 days, which is 520 days beyond the one year allotted in § 2244(d)(1). Unless the allegations of the habeas petition, if true, establish that Chavez is entitled to 520 days of equitable tolling, the district court's ruling that the petition was time-barred is correct.
C.
Chavez's petition sets out the following allegations about what his three sets of post-conviction attorneys did or failed to do between the appointment of the first attorney in May 2003 and the filing of the federal habeas petition by the third attorney's law partner in February 2010. FN5. Andrea Norgard was the third attorney appointed to represent Chavez in his state post-conviction proceedings. She filed the amended motion for post-conviction relief on October 4, 2006. Her law partner (and husband) Robert Norgard filed Chavez's federal habeas petition.
The state trial court appointed John Lipinski to represent Chavez in his state post-conviction proceedings, and Lipinski filed a notice of appearance on May 23, 2003, one month before the United States Supreme Court denied certiorari in Chavez's direct appeal. Lipinski's co-counsel, Todd Scher, visited Chavez a short time after Lipinski was appointed, and Chavez later mailed Scher a list of proposed points that he wanted raised in a post-conviction motion. Despite that communication and other “repeated inquiries” about the status of the motion, Chavez received no response from either Lipinski or Scher.
On January 26, 2004, Lipinski requested, under Florida Rule of Criminal Procedure 3.851(d)(5),FN6 that the Florida Supreme Court grant him an extension until July 19, 2004, to file Chavez's state post-conviction motion. According to the allegations of the federal habeas petition, the grounds for that extension were Lipinski's health problems, which had led to his hospitalization for a heart procedure on January 21, 2004, just a few days before he filed the request for an extension of time. The extension motion itself stated that Lipinski had been suffering from “sweating, watering eyes, shortness of breath, ‘tingling’ in his left hand, elevated blood sugar, and trouble remaining alert, awake and focused for hours at a time.” (quotation marks omitted). FN6. Florida Rule of Criminal Procedure 3.851 provides that “[a]ll pleadings in the postconviction proceeding shall be filed with the clerk of the trial court,” Fla. R.Crim. P. 3.851(f)(1), but that “[a]n extension of time may be granted by the Supreme Court of Florida for the filing of postconviction pleadings if the prisoner's counsel makes a showing of good cause,” id. 3.851(d)(5).
Chavez's habeas petition alleges that Lipinski still had those symptoms when he met with Chavez for the first time on July 9, 2004, more than a year after he had been appointed as post-conviction counsel. Lipinski was “out of it,” according to the petition, and “appeared unable to remain alert, awake, and focused.” Just a few weeks later, on July 19, 2004, Lipinski filed a motion on behalf of Chavez for post-conviction relief. But the petition alleges that there were significant problems with that motion: Chavez “did not know the origin of some of the statements ... made in the motion,” and Lipinski had turned some of Chavez's answers to his questions “backward.” As a result, Chavez refused to sign the motion, because he believed that it “contained statements that were untrue,” “was ineffective,” and “demonstrated that Mr. Lipinski was not competent to properly handle his postconviction litigation.” The habeas petition admits that because Chavez refused to sign the state post-conviction motion, it “was not under oath as required by Florida Rule of Criminal Procedure 3.850”FN7 and was therefore not “a properly filed postconviction motion.” Therefore, the petition concedes, it “did not toll the time for Mr. Chavez to file his federal habeas corpus petition.”FN8
FN7. Technically speaking, motions to set aside a death sentence are filed under Florida Rule of Criminal Procedure 3.851, not 3.850, but motions for relief under either of those two rules must be sworn. Compare Fla. R. Crim. P. 3.851(e)(1), with 3.850(c). FN8. We agree with that concession. In order to statutorily toll the running of the limitations period, an application for state collateral relief must be “properly filed” under state law. See 28 U.S.C. § 2244(d)(2); Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007); Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); see also Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir.2000) (holding that the defendant's motion was not properly filed where it did not comply with the written oath requirement of Fla. R.Crim. P. 3.850).
The petition also alleges that after Lipinski filed the unsworn state post-conviction motion anyway, Chavez filed in state court a pro se motion to discharge him. Chavez attached to the motion a handwritten letter to the court “in which he stated that he could not get either Mr. Lipinski or co-counsel, Mr. Scher, to respond to him for over a year despite repeated attempts on his part to ascertain the status of his case.” Chavez's letter complained about the unsworn collateral attack motion that Lipinski had filed, asserting that in it Lipinski had “mixed up and confused the content of the initial interview” with Chavez and had included “a bunch of foolishness.” For his part, Lipinski requested that the Florida Supreme Court grant him an enlargement of time to file a sworn post-conviction motion, which it did, giving Lipinski until September 7, 2004, to file a sworn motion in the state trial court. But Lipinski never had a chance to do so. On August 25, 2004, the state trial court granted Chavez's pro se motion to remove Lipinski, and it appointed attorney Lee Weissenborn to replace him. The only motion for state post-conviction relief that Lipinski ever filed for Chavez was the one that Chavez refused to sign, which was filed unsworn on July 19, 2004.
In addition to those allegations about Lipinski's representation, Chavez's habeas petition contains the following allegations about Weissenborn's representation. Weissenborn met with Chavez once. He sought and received from the Florida Supreme Court two extensions of time to file a motion with the trial court for post-conviction relief under Florida Rule of Criminal Procedure 3.851. Those extensions resulted in a final filing deadline of May 2, 2005. Weissenborn missed that deadline, but by only three days, filing a motion for post-conviction relief in the state trial court on May 5, 2005. (Neither party suggests that Weissenborn's missing the deadline by three days had any detrimental effect on Chavez.) Like the state post-conviction motion that Lipinski had filed, the one Weissenborn filed also was “not under oath or signed by Mr. Chavez.” Chavez's habeas petition explains, however, that “Mr. Weissenborn did subsequently have Mr. Chavez sign a hand-written oath to be attached to the motion,” but it notes “that oath does not appear in the court file, nor is it file-stamped.” For our purposes, though, we will assume this motion was properly filed. (In the response that the State filed to Chavez's May 5, 2005 post-conviction motion, it did not assert, nor did the state trial court find, that the motion was not properly sworn.FN9) The habeas petition also alleges that the post-conviction motion Weissenborn filed “adopted some of the arguments raised by Mr. Lipinski to which Mr. Chavez had originally objected,” and that Chavez “wrote to Mr. Weissenborn complaining of the same.”
FN9. In its brief to us, the State concedes that it has an oath “purportedly signed by Chavez and dated May 2, 2005 and date stamped filed, on May 27, 2005 in the Assistant Attorney General's file.” Br. of Respondents at 28 n.6.
On November 8, 2005, six months after he had filed the post-conviction motion in the state trial court on Chavez's behalf, Weissenborn filed a motion for leave to withdraw from the case. The trial court granted the motion on December 13, 2005, explaining that Weissenborn had asked to withdraw because he had “irreconcilable and irreparable differences” with Chavez's trial counsel, who he had hoped would be the primary witness testifying on Chavez's behalf at the evidentiary hearing in the state post-conviction proceeding. The habeas petition alleges that the court also expressed concern, based on conversations that Weissenborn's wife had with attorneys for the State, that “Weissenborn's physical health could be affected by this case.”
Andrea Norgard was the third and final attorney appointed to represent Chavez in the state post-conviction proceeding. The habeas petition alleges that Norgard “encountered considerable difficulty obtaining the record from previous counsel,” that she obtained “most of the record” in June 2006, and that she filed an amended motion for state post-conviction relief on October 4, 2006. FN10. Chavez's habeas petition actually alleges this post-conviction motion was filed on “October 24, 2006,” but that date would appear to be a typographical error. That post-conviction motion was a part of the record that was before the district court, and it is stamped with a file date of October 4, 2006. At any rate, whether the motion was filed on October 4, 2006 or twenty days later does not affect the outcome of this case.
Following an evidentiary hearing on Chavez's claims, the state trial court denied his amended motion for post-conviction relief on March 8, 2007. He appealed that denial to the Florida Supreme Court. That court affirmed the denial and also denied a related petition for state habeas corpus relief on June 25, 2009, and issued its mandate on July 21, 2009.
VI.
We turn now to the decisions of this Court and the Supreme Court that deal with the circumstances in which the one-year AEDPA statute of limitations set out in 28 U.S.C. § 2244(d) may be subject to equitable tolling. The Supreme Court dealt with the issue of equitable tolling of the AEDPA statute of limitations in Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). That case involved § 2244(d)(2), which provides that for statute of limitations purposes the time in “which a properly filed application for state post-conviction or other collateral review ... is pending” is not counted. See Lawrence, 549 U.S. at 331, 127 S.Ct. at 1082. The question in the case was whether that statutory tolling provision applies to the period in which a petition for certiorari to review the denial of state collateral relief is before the United States Supreme Court. Id. at 331–36, 127 S.Ct. at 1082–85. The answer the Court gave was “no.” Id. Then the Court addressed the petitioner's argument that even if he was not entitled to the statutory tolling provided by § 2244(d)(2), he was entitled to equitable tolling for the period in which he was seeking certiorari review of the state collateral court's decision. Id. at 336–37, 127 S.Ct. at 1085–86. The Court rejected that argument, too. In doing so, it initially observed that “[t]o be entitled to equitable tolling, [a petitioner] must show ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 336, 127 S.Ct. at 1085 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005)).
Among the reasons the petitioner in Lawrence offered to justify equitable tolling was “his counsel's mistake in miscalculating the limitations period.” Id., 127 S.Ct. at 1085. The Court rejected that reason as a justification for equitable tolling: If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel. Id. at 336–37, 127 S.Ct. at 1085; cf. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990) ( “Petitioner urges that his failure to file in a timely manner should be excused because his lawyer was absent from his office at the time that the EEOC notice was received, and that he thereafter filed within 30 days of the day on which he personally received notice. But the principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.”); but see Holland v. Florida, –––– U.S. –––– 130 S.Ct. 2549, 2568, 177 L.Ed.2d 130 (2010) (Alito, J., concurring) (stating that in a case where there were extraordinary circumstances beyond the petitioner's control, “[c]ommon sense dictates that a litigant cannot be constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of the word.”).
Three years later, the Supreme Court returned to the issue of equitable tolling of the § 2244(d) limitations period in Holland v. Florida, –––U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), which involved Florida death row inmate Albert Holland. Id. at 2554–55. Thirty-seven days after Holland's conviction and sentence had become final and the one-year AEDPA statute of limitations had begun to run, Bradley Collins was appointed to be his post-conviction counsel. Id. at 2555. Collins waited 316 days before filing a motion for post-conviction relief in state court, which left only 12 days of unspent limitations period. Id.; see also 28 U.S.C. § 2244(d)(1) & (2). The state trial court denied relief about a year later and a timely appeal was filed. Holland, 130 S.Ct at 2555.
During the two years that the appeal of the state trial court decision was pending before the Florida Supreme Court, communications between Holland and Collins completely broke down. Id. Holland wrote numerous letters to the Florida Supreme Court and its clerk's office requesting that Collins be removed, but all of his requests were denied. Id. at 2555–56. He wrote frequently to Collins as well, stressing the importance of promptly filing a federal habeas petition if and when the Florida Supreme Court affirmed the denial of his state motion for post-conviction relief. Id. at 2556–57. All of those letters went unanswered. Id. Collins did not even contact Holland when the Florida Supreme Court affirmed the trial court's denial of relief and issued the mandate in his case; Holland discovered those facts only as a result of his own research in the prison library weeks after the mandate had issued. Id. The very next day after he made that discovery, Holland drafted his own federal habeas petition and mailed it to the district court, but by that point the one-year statute of limitations had already run—the deadline passed about five weeks before Holland's pro se petition was filed. Id. at 2557.
The communications between Holland and Collins that followed the filing of the pro se petition indicated that Holland, the death row inmate, knew more about the law applying AEDPA's statute of limitations than Collins, his lawyer, did. Id. at 2557–58. About two months after he filed his pro se petition, Holland filed a pro se motion in federal district court asking that Collins be removed. Id. at 2559; Holland v. Florida, 539 F.3d 1334, 1337 (11th Cir.2008), rev'd, ––– U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). The district court ultimately granted that motion, appointed new counsel, and requested briefing “on whether the circumstances of the case justified the equitable tolling of the AEDPA limitations period for a sufficient period of time (approximately five weeks) to make Holland's petition timely.” Holland, 130 S.Ct. at 2559. After considering those briefs, the district court determined that the facts did not warrant equitable tolling because Holland had not sought the court system's help in learning the date that the mandate had issued in the denial of his state habeas petition, nor had he sought help from any “ ‘outside supporters.’ ” Id. As a result, the district court reasoned, Holland had not “ ‘demonstrate[d]’ the ‘due diligence’ necessary” for equitable tolling and his petition was therefore time-barred under § 2244(d). Id.
This Court affirmed the district court's decision, but on different grounds. We concluded that Holland's case presented nothing more than “[p]ure professional negligence,” which could never rise to the level of “extraordinary circumstances” that would justify equitable tolling. Holland, 539 F.3d at 1339. We explained the standard we were applying: [I]n our view, no allegation of lawyer negligence or of failure to meet a lawyer's standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer's part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling. Pure professional negligence is not enough.4 Id.
The Supreme Court granted certiorari and issued its decision disagreeing with our standard about when equitable tolling should apply based on a lawyer's actions or inactions. The Court first re-emphasized: “We have previously made clear that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562 (quoting Pace, 544 U.S. at 418, 125 S.Ct. at 1814). The Court also recognized that in previous cases it had held that “ ‘a garden variety claim of excusable neglect,’ such as a simple ‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.” Id. at 2564 (citations omitted) (quoting Irwin, 498 U.S. at 96, 111 S.Ct. at 458, and Lawrence, 549 U.S. at 336, 127 S.Ct. at 1085). The Court reasoned, however, that the facts of Holland did not involve a “ ‘garden variety claim’ of attorney negligence,” but instead “far more serious instances of attorney misconduct.” Id. The Court recounted the various failures on the part of Collins, as well as Holland's own “reasonable diligence” in pursuing his claims. Id. at 2564–65 (quotation marks omitted). And it summarized the attorney's misconduct in light of his client's repeated entreaties:
To be sure, Collins failed to file Holland's petition on time and appears to have been unaware of the date on which the limitations period expired—two facts that, alone, might suggest simple negligence. But, in these circumstances, the record facts we have elucidated suggest that the failure amounted to more: Here, Collins failed to file Holland's federal petition on time despite Holland's many letters that repeatedly emphasized the importance of his doing so. Collins apparently did not do the research necessary to find out the proper filing date, despite Holland's letters that went so far as to identify the applicable legal rules. Collins failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, again despite Holland's many pleas for that information. And Collins failed to communicate with his client over a period of years, despite various pleas from Holland that Collins respond to his letters. Id. at 2564 (emphasis added).
Concluding that the district court had “erroneously relied” on Holland's supposed lack of diligence, when he had actually been quite diligent, and that this Court had “erroneously relied on an overly rigid per se approach,” the Supreme Court remanded the case for further proceedings to determine whether Holland had established that he was entitled to equitable tolling or an evidentiary hearing on that issue. Id.
Less than a year after the Holland decision, this Court decided San Martin v. McNeil, 633 F.3d 1257 (11th Cir.2011), in which we reviewed the district court's ruling that the petitioner, San Martin, had not acted under extraordinary circumstances or with reasonable diligence. Id. at 1269. San Martin had attempted to ground his claim to equitable tolling primarily on two allegations—the two-week delay in his receiving notice of the Supreme Court's order denying certiorari and the additional delay of nearly four months in appointment of post-conviction counsel.FN11 Id. at 1268. We rejected his contention that those alleged facts amounted to extraordinary circumstances that had prevented him from timely filing his federal habeas petition. Id. at 1269. We pointed out:
FN11. The Supreme Court had denied certiorari review in San Martin's direct appeal on October 5, 1998, but he alleged that he was not notified of that fact until October 19, 1998, and that post-conviction counsel was not appointed until February 11, 1999. San Martin, 633 F.3d at 1261, 1263.
San Martin has not begun to explain how the two-week delay in receiving notice of the Supreme Court's denial of his certiorari petition ultimately caused the late filing of his federal habeas petition; or why he did not have ample time, even after the two-week delay, in which he could have presented a timely federal petition.... To the extent he is arguing that he could not have filed his state or federal post-conviction motions until he obtained a lawyer, his lawyer was appointed on February 11, 1999, which means that he still waited 235 days after having been appointed a lawyer before filing his tolling state post-conviction motion.
Id. at 1270–71 (footnote omitted).
In addition to determining that those alleged facts did not amount to the “extraordinary circumstances” that Holland requires, id. at 1271, we also determined that San Martin had “failed to make any showings of ‘reasonable diligence,’ ” which Holland also requires, id. at 1270; see also Holland, 130 S.Ct. at 2562 (stating that the petitioner must show that he had “been pursuing his rights diligently”). In sum, we explained: “ ‘In the absence of any showing of his own diligence [or extraordinary circumstances], [San Martin] cannot be entitled to the rare and extraordinary remedy of equitable tolling.’ ” San Martin, 633 F.3d at 1271 (alterations in original) (quoting Drew, 297 F.3d at 1289).
With respect to San Martin's request for an evidentiary hearing, we held that the district court had not abused its discretion in denying one, because:
San Martin has not alleged that he proceeded diligently in attempting to learn of the Supreme Court's disposition of his appeal, or that he proceeded diligently upon learning of the order. Nor has he made any showing that the two-week delay in notice was an extraordinary circumstance that in any way prevented or impeded the timely filing of his federal habeas petition. In fact, San Martin has never submitted any kind of affidavit—to this Court or the district court—with any statements concerning the timeliness of his petition, his diligence, or the circumstances surrounding his state court and federal court filings, let alone any extraordinary circumstance that may have impeded him from timely filing his federal petition.
Id. at 1272. In other words, San Martin was not entitled to an evidentiary hearing because the facts he alleged, when taken as true, did not show extraordinary circumstances preventing the timely filing of his habeas petition and did not show that he had acted with reasonable diligence in attempting to get it filed.
VII.
Now we apply the law set out in the Holland and San Martin decisions to the facts alleged in Chavez's federal habeas petition to determine if the district court abused its discretion in denying him an evidentiary hearing to prove those facts. The question is whether the alleged facts, when taken as true, show both extraordinary circumstances and reasonable diligence entitling Chavez to enough equitable tolling to prevent his petition from being time-barred under § 2244(d). If so, he gets an evidentiary hearing and the chance to prove that those factual allegations are true. If not, the district court's dismissal of his petition on statute of limitations grounds without an evidentiary hearing is due to be affirmed.
As we have explained in some detail earlier in this opinion, even after giving him full credit under § 2244(d)(2) for statutory tolling during all of the time that his motion for post-conviction relief was pending in state court, Chavez filed his federal habeas petition 520 days after the one-year limitations period imposed by § 2244(d) had run. See supra Part V.B. He needs that many days of equitable tolling.
The clearest path through this issue is one that follows the lapse of non-statutorily tolled time that occurred while each of the three post-conviction attorneys (and any of their co-counsel) were representing Chavez: Lipinski, Weissenborn, and Norgard. The district court simplified matters by assuming, as Chavez contends and the State disputes, that the entire time Lipinski was representing Chavez should be equitably tolled (none of that time was statutorily tolled because the motion for state post-conviction relief was not filed until after Lipinski was removed from the case). That is a generous assumption, but for the sake of simplicity and because it does not alter the result, we will also indulge it. But subtracting every one of the 429 days that ran during Lipinski's representationFN12 from the 520 days of lateness still leaves Chavez 91 days short of the amount of equitable tolling that he needs. He does not contend that he is entitled to any equitable tolling for the period during which Norgard was representing him. That means Chavez must get all 91 days of tolling that he needs from the period in which Weissenborn was representing him.
4
FN12. Here is how we calculate that during Lipinski's representation 429 days lapsed that were not statutorily tolled: The AEDPA clock began to run during Lipinski's representation only after the United States Supreme Court denied Chavez's petition for writ of certiorari on direct appeal on June 23, 2003. See 28 U.S.C. § 2244(d)(1)(A). Not counting June 23, 2003, itself, see Fed.R.Civ.P. 6(a), and bearing in mind that the year 2004 was a leap year, 429 days passed between June 24, 2003 and August 25, 2004, when the state trial court removed Lipinski.
The habeas petition contains only four allegations about what happened during the period in which Weissenborn was serving as Chavez's counsel. The first allegation is that Weissenborn met with Chavez only once. That is not an allegation of a “serious instance[ ] of attorney misconduct” that the Supreme Court spoke of in Holland. See 130 S.Ct. at 2564. And there is no apparent connection between the number of times an attorney meets with his client and the speed with which the attorney files court motions and pleadings.
The habeas petition's second allegation about Weissenborn is that he sought and received two extensions of time to file a state post-conviction motion. See Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir.2005) (requests for extensions of time to file motions for state post-conviction relief, and even extensions themselves, do not toll AEDPA's statute of limitations). But that allegation is simply another way of saying that the motion for post-conviction relief was not filed in state court soon enough to permit the federal habeas petition to be filed on time. Saying that does no more to establish serious attorney misconduct of the kind Holland requires than the simple statement that counsel did not file promptly enough. See Irwin, 498 U.S. at 96, 111 S.Ct. at 458 (equitable tolling does not extend to “a garden variety claim” of neglect); cf. Lawrence, 549 U.S. at 336–37, 127 S.Ct. at 1085 (“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”). It goes without saying that Weissenborn did not proceed promptly enough. If he had, there would be no statute of limitations problem to begin with and we would not be talking about whether there were the kind of extraordinary circumstances and serious attorney misconduct that warrants equitable tolling. In virtually every case where the issue of equitable tolling comes up one or more attorneys should have acted with more dispatch, but more than that is required.
The habeas petition's third allegation about Weissenborn is that the May 5, 2005 state post-conviction motion may not have been properly filed, despite the fact that the petition states that Chavez did “sign a hand-written oath to be attached to that motion.” The allegation that the motion may not have been properly filed does not affect the statutory tolling or the outcome in this case based on the positions that the parties have taken and the assumptions that we have made. See supra at 1065.
None of the three allegations in the habeas petition about what Weissenborn did and failed to do comes close to the serious attorney misconduct that was present in Holland. See 130 S.Ct. at 2564. Instead, they are at most allegations of garden variety negligence or neglect. Indeed, the habeas petition itself pleads and concedes that “Weissenborn did not engage in egregious behavior.” There is no reason that we should not take Chavez at his word about that.
The habeas petition's fourth and final allegation about Weissenborn is that, when it granted his motion to withdraw from the case, the state trial court expressed concerns about the effect the case might have on Weissenborn's health were he to continue representing Chavez. See supra at 1065. There are, however, no allegations at all that Weissenborn's health had affected his ability to handle the case up to the time he withdrew or that it had prevented him from filing the motion for state post-conviction relief sooner. The allegation is only that the state trial court was concerned about how his health might be affected in the future were he to continue representing Chavez. And those health concerns are alleged to have been mentioned only on the day the court granted the motion to withdraw, December 13, 2005, which was seven months after Weissenborn had filed the May 5, 2005 motion for state post-conviction relief. Not only that, but the habeas petition also alleges that the actual reason Weissenborn moved to withdraw, and the reason he was permitted to do so, was that a conflict had developed between him and the chief witness who would be testifying for Chavez in any post-conviction proceedings.
Not only did the habeas petition fail to allege the kind of extraordinary circumstances and serious attorney misconduct by Weissenborn that is required for equitable tolling, it also failed to allege that Chavez acted with diligence in pursuing his rights during that period, which is another requirement for equitable tolling. See Holland, 130 S.Ct. at 2562; accord San Martin, 633 F.3d at 1267. In fact, the petition contains no allegations that Chavez made any attempt to preserve his rights between August 25, 2004, when Weissenborn took the case, and the time that Weissenborn's motion to withdraw was granted on December 13, 2005.FN13 It contains no allegation that Chavez ever urged Weissenborn to file a motion for post-conviction relief, or to do so more quickly, or that Chavez ever attempted to contact the state court about his case during that time, or that he ever attempted to have Weissenborn removed. Cf. Holland, 130 S.Ct. at 2565 (By contrast, “Holland not only wrote his attorney numerous letters seeking crucial information and providing direction; he also repeatedly contacted the state courts, their clerks, and the Florida State Bar Association in an effort to have Collins—the central impediment to the pursuit of his legal remedy—removed from his case.”). There is no allegation that shows Chavez was diligently pursuing his rights during the time Weissenborn represented him. Cf: id. (By contrast, “The very day that Holland discovered that his AEDPA clock had expired due to Collins' failings, Holland prepared his own habeas petition pro se and promptly filed it with the District Court.”); see also id. at 2559 (recounting Holland's various efforts to have his attorney removed, including the pro se motion he filed with the district court).
FN13. The habeas petition does allege that Chavez wrote Weissenborn to complain about some of the arguments that were made in the May 5, 2005 motion for post-conviction relief. The petition does not allege exactly when Chavez wrote Weissenborn, and Chavez has not argued that this allegation shows he was pursuing his claims with diligence. It appears, instead, to show that he was disagreeing with his counsel about those claims and the arguments supporting them. In any event, we have assumed that once the state post-conviction motion was filed, statutory tolling under § 2244(d)(2) kicked in. See supra at 1062.
Thus, even if we were to assume that the allegations in the habeas petition about Weissenborn's actions or the allegation about the threat to his future health somehow amounted to serious attorney misconduct or otherwise rose to the level of extraordinary circumstances that prevented the state post-conviction motion from being filed between August 25, 2004, and May 5, 2005, equitable tolling would still not be warranted because there is no allegation that Chavez acted with reasonable diligence during that time. As the Supreme Court held in the Pace decision: “Under long-established principles, petitioner's lack of diligence precludes equity's operation.” Pace, 544 U.S. at 419, 125 S.Ct. at 1815.
Our conclusion is bolstered by the fact that Chavez waited for 203 days after the conclusion of his state post-conviction proceedings before deciding to seek relief in federal court. See, e.g., Pace, 544 U.S. at 419, 125 S.Ct. at 1815 (rejecting petitioner's argument for equitable tolling in part because “not only did petitioner sit on his rights for years before he filed his [state post-conviction] petition, but he also sat on them for five more months after his [state post-conviction] proceedings became final before deciding to seek relief in federal court”). For all of these reasons, the facts alleged in Chavez's habeas petition, even if they were true, would not entitle him to equitable tolling for 91 of the days, or any days for that matter, during which Weissenborn was representing him.
In summary, after accounting for statutory tolling under § 2244(d)(2), Chavez's habeas petition was filed 520 days after the expiration of the one-year limitations period set out in § 2244(d). Even with the generous assumption that the entire 429 days while Lipinski was representing Chavez should be equitably tolled, the petition was still 91 days too late. Given that the facts alleged in the petition, even if true, would not warrant enough equitable tolling to make it timely, the district court did not abuse its discretion in denying Chavez's motion for an evidentiary hearing to prove those allegations. See San Martin, 633 F.3d at 1271–72 (holding that the district court did not abuse its discretion in refusing to grant an evidentiary hearing on equitable tolling where the petitioner did not allege “that he proceeded diligently,” made no showing of extraordinary circumstances, and “proffered no supporting evidence of diligence or extraordinary circumstances”); Allen, 611 F.3d at 763 (“Having alleged no specific facts that, if true, would entitle him to federal habeas relief, Allen is not entitled to an evidentiary hearing.”). The judgment dismissing the petition as untimely is due to be affirmed. AFFIRMED.