Ana Maria Cardona v. State of Florida , 41 Fla. L. Weekly Supp. 45 ( 2016 )

Supreme Court of Florida
____________
No. SC11-1446
____________
ANA MARIA CARDONA,
Appellant/Cross-Appellee,
vs.
STATE OF FLORIDA,
Appellee/Cross-Appellant.
[February 18, 2016]
PER CURIAM.
Ana Maria Cardona, who was twenty-nine years old at the time of the
crimes, was found guilty of the 1990 first-degree murder and aggravated child
abuse of her three-year-old son, Lazaro Figueroa. Cardona appeals her convictions
and the death sentence imposed for the murder. We have jurisdiction. See art. V,
§ 3(b)(1), Fla. Const.
We are compelled to vacate Cardona’s convictions and remand for a new
trial based on the pervasiveness and the cumulative effect of the prosecutor’s
numerous improper closing arguments in the guilt phase, which repeatedly crossed
the line this Court has clearly established regarding impermissible prosecutorial
comments. As we have stated for decades, we expect and require prosecutors, as
representatives of the State, to refrain from engaging in inflammatory and abusive
arguments, to maintain their objectivity, and to behave in a professional manner.
See, e.g., Delhall v. State, 95 So. 3d 134, 170 (Fla. 2012); Brooks v. State, 762 So.
2d 879, 904-05 (Fla. 2000); Gore v. State, 719 So. 2d 1197, 1202 (Fla. 1998);
Urbin v. State, 714 So. 2d 411, 418-22 (Fla. 1998).
Over sixty years ago, this Court stated:
Under our system of jurisprudence, prosecuting officers are clothed
with quasi judicial powers and it is consonant with the oath they take
to conduct a fair and impartial trial. The trial of one charged with
crime is the last place to parade prejudicial emotions or exhibit
punitive or vindictive exhibitions of temperament.
Stewart v. State, 51 So. 2d 494, 495 (Fla. 1951). While prosecutors should be
encouraged to prosecute cases “with earnestness and vigor,” they are not at liberty
to strike “hard blows.” See Berger v. United States, 295 U.S. 78, 88 (1935).
Our decision is required by our prior precedent, which mandates reversal
where a prosecutor “exceed[s] the bounds of proper conduct and professionalism
and provide[s] a ‘textbook’ example of overzealous advocacy.” Gore, 719 So. 2d
at 1202. As we have previously emphasized, “[t]his type of excess is especially
egregious in this, a death case, where both the prosecutors and courts are charged
with an extra obligation to ensure that the trial is fundamentally fair in all
respects.” Brooks, 762 So. 2d at 905 (quoting Gore, 719 So. 2d at 1202).
-2-
The improper arguments in this case—including the prosecutor’s
inflammatory refrain of describing the purpose of the trial as seeking “justice” for
the child victim and the prosecutor’s repeated denigration of the defense’s
presentation as “diversionary”—pervaded the closing argument from beginning to
end. Most of the improper comments were objected to, and those objections were
overruled, amplifying the prejudicial effect of the comments by implicitly placing
the trial court’s imprimatur of approval on the remarks.
As we explain below, the trial court’s error in allowing the prosecutor to
repeatedly emphasize that the purpose of the trial was to obtain “justice for
Lazaro,” by itself, was not harmless beyond a reasonable doubt, and thus a new
trial is warranted on this basis. However, our conclusion that a new trial is
required is buttressed by the fact the prosecutor’s closing argument was pervaded
with a multitude of other improper comments that defense counsel preserved for
appellate review. Accordingly, we reverse and remand for a new trial untainted by
improper prosecutorial arguments that inflame the passions of the jury in this
emotionally-charged case.
FACTS
Cardona was originally tried in 1992, found guilty of aggravated child abuse
and first-degree murder, and sentenced to death. Cardona v. State, 641 So. 2d 361,
363 (Fla. 1994). This Court affirmed her convictions and death sentence in 1994.
-3-
Id. at 366. However, in 2002, through a subsequent postconviction appeal, this
Court reversed the convictions and sentences because the State committed a Brady1
violation by failing to disclose material criminal investigation reports of the State’s
interviews with Cardona’s companion and codefendant, Olivia Gonzalez. Cardona
v. State, 826 So. 2d 968, 970 (Fla. 2002). These reports contained significantly
contradictory versions of the story pertaining to whether Gonzalez, rather than
Cardona, was the primary perpetrator of the escalating child abuse that culminated
in Lazaro’s death. Id.
During the 2010 retrial, the State did not introduce the testimony of
Gonzalez but instead relied primarily on circumstantial evidence to establish
Cardona’s guilt. The State presented extensive evidence about the condition of the
young victim when he was found dead and also produced detailed testimony of the
likely cause of the child’s severe injuries.
The evidence established that employees of Florida Power & Light
Company found the body of a three-year-old boy in the bushes in front of a Miami
Beach home on the morning of November 2, 1990. The child was extremely thin,
his bones were visible, and he had a large bruise near his right eye. He was
dressed in blue gym shorts that covered a dirty diaper wrapped many times with
1. Brady v. Maryland, 373 U.S. 83 (1963).
-4-
brown packaging tape. His t-shirt bearing a lollipop design would inspire the
Miami Beach Police Department to dub the investigation to uncover the identity of
the boy and the person responsible for the boy’s death as the “Baby Lollipops”
case.
The Miami Beach Police Department conducted door-to-door interviews,
distributed flyers bearing this moniker in English and Spanish, held a news
conference, and had detectives working on the case around the clock. Ultimately,
after receiving numerous leads, the police identified the child as three-year-old
Lazaro Figueroa, the son of Ana Maria Cardona and Fidel Figueroa, who was
murdered a month before Lazaro was born.
The autopsy revealed details about Lazaro’s physical condition and the
cause of death. The medical examiner opined that Lazaro ultimately died on
November 1, 1990, as a result of a significant blunt injury to the head that had
occurred hours to days before his death. This was reflected in a fresh fatal tear to
the corpus callosum, the band of nerve tissue between the left and right sides of the
brain.
The medical examiner found numerous other injuries to the body, ranging
from hours- and days-old, to even months-old, injuries. Lazaro was also
malnourished, anemic, and dehydrated, weighing only 18 pounds. His body was
covered in scars and bruises, with bedsores from his head to his buttocks. In the
-5-
opinion of the medical examiner, the cause of death was “child abuse syndrome,”
resulting from the cumulative effect of all of Lazaro’s injuries, even though the
injuries to the corpus callosum hastened his death.
The police pursued a lead that Cardona was the child’s mother, and, in early
December 1990, discovered that Cardona; her companion, Olivia Gonzalez; and
Cardona’s two other children had moved to Osceola County and were living
together in a motel. When law enforcement located and confronted Cardona, she
told detectives that Lazaro had been jumping on the bed, fell and hit his head on
the tile floor, and that she tried to revive him with perfume and waited for
Gonzalez to return home from work. She stated that she and Gonzalez decided to
leave Lazaro in front of a “very beautiful home” because she thought “those people
have money” and could take care of him.
The defense’s theory during the retrial was that the State could not prove
Cardona had Lazaro in her care during the last few months of his life. The defense
also showed the plausibility that another suspect named Gloria Pi, who had been
investigated and had allegedly confessed to killing a little boy, may have been
involved.
At the conclusion of the guilt phase, the jury found Cardona guilty of
aggravated child abuse and first-degree murder. A penalty phase was subsequently
held, after which the jury recommended that Cardona be sentenced to death by a
-6-
bare majority vote of seven to five. Ultimately, the trial court found one
aggravating circumstance, that the murder was especially heinous, atrocious, or
cruel (HAC), and gave it “overwhelmingly great weight.” After determining that
this aggravating circumstance outweighed all of the mitigation,2 the trial court
2. The trial court found one statutory mitigating circumstance—that
Cardona had no significant criminal history—and assigned it little weight. The
trial court found eighteen nonstatutory mitigators, assigning them the following
weights: (1) limited educational background (minimal weight); (2) limited
intelligence (little weight); (3) lack of parenting by her father (slight weight); (4)
emotional rejection by her biological mother (little weight); (5) trauma suffered as
a child (minor weight); (6) arrival in the U.S., pregnant with no support system (no
weight); (7) lack of reunification with her mother in the U.S. (little or no weight);
(8) influences of other people, including the victim’s father who was murdered
(miniscule weight); (9) the 40-year sentence of her codefendant (no weight); (10)
above average behavior during twenty years of incarceration and recognition as a
model inmate (slight weight); (11) baptism in prison (minimal weight); (12) work
as a trustee on a voluntary basis (little weight); (13) positive influence on fellow
inmates, including helping them in difficult moments (slight weight); (14) makes
correctional officer’s job easier (minimal weight); (15) sincere spiritual growth
(inconsequential weight); (16) participation in substance abuse programs
(inconsequential weight); (17) reestablishment of a relationship with her adult
children and the importance of the bond between her and her children (little
weight); and (18) redemption (very little weight).
The trial court rejected three proposed statutory mitigating circumstances:
(1) that Cardona committed the crime while under the influence of extreme mental
or emotional disturbance; (2) that Cardona acted under extreme duress or under the
substantial domination of another person; and (3) that her capacity to appreciate
the criminality or to conform her conduct to the requirements of law was
substantially impaired. The trial court also rejected the following nonstatutory
mitigators offered by Cardona: (1) Cardona was a battered woman; (2) Cardona
suffers from dependent personality disorder; (3) the codefendant, companion
Olivia Gonzalez, played a role in the crime; and (4) Cardona was remorseful.
-7-
imposed a death sentence for the murder and fifteen years in prison for aggravated
child abuse.
ANALYSIS
On appeal to this Court, Cardona raises ten claims.3 We conclude that one
of the claims—that the trial court erred in the guilt phase by allowing the
prosecutor to engage in inflammatory, egregious, and legally improper closing
argument—is dispositive. This error with respect to the State’s closing argument
was so detrimental that we must reverse, even though the State presented sufficient
evidence in support of the jury’s guilty verdict and, in the penalty phase, provided
competent, substantial evidence to establish the existence of the single aggravating
circumstance, HAC, beyond a reasonable doubt.
3. The ten claims raised by Cardona are: (1) the trial court erred in striking
two jurors and in allowing the State to strike one juror; (2) the prosecutor
improperly questioned its witness and commented on Cardona’s silence, in
violation of her constitutional rights; (3) the trial court erred by failing to conduct a
proper inquiry after the State’s expert changed his opinion; (4) the prosecutor made
improper comments during the guilt-phase closing arguments, which violated
Cardona’s right to a fair trial; (5) the prosecutor made improper comments during
the penalty-phase closing arguments; (6) the trial court erred in allowing the State
to argue HAC based on acts remote from the immediate circumstances of the
victim’s death; (7) the trial court erred in sentencing Cardona to death based on
facts not in evidence and imposing a nexus requirement on mitigation; (8) the trial
court erred in denying Cardona’s claim that she had an intellectual disability; (9)
basing a death sentence on a bare seven-to-five jury recommendation violates Ring
v. Arizona, 536 U.S. 584 (2002), and the Florida Constitution; and (10) the errors
in this case had the cumulative effect of depriving Cardona of a fair trial, due
process of law, and a reliable sentencing process.
-8-
Because the guilt-phase closing argument is dispositive, we do not address
the remaining issues except for those likely to reoccur on retrial: (1) whether the
trial court erred in refusing to consider certain IQ tests for purposes of Cardona’s
intellectual disability claim; and (2) the two cross-appeal claims raised by the
State, that the trial court erred in refusing to permit its expert to testify in rebuttal
during the penalty phase and in refusing to allow the State to introduce evidence to
rebut the “no significant criminal history” mitigating circumstances.4
I. Guilt-Phase Closing Argument
We first address Cardona’s claim that the trial court erred in allowing the
prosecutor to make improper comments during the guilt-phase closing arguments.
The context for the numerous improprieties that pervaded the prosecutor’s closing
argument is the very nature of the case itself, which involved the tragic death of a
three-year-old boy who suffered extensive injuries prior to and leading up to his
death. Clearly, the graphic evidence of Lazaro’s extensive injuries and ultimate
death would be a cause for sympathy to the jurors who were to decide the guilt or
innocence of Cardona, the child’s mother.
4. Because we are granting a new trial, we need not address Cardona’s
claim under Ring v. Arizona, 536 U.S. 584 (2002), which has now been applied in
Florida by the United States Supreme Court in Hurst v. Florida, 136 S. Ct. 616
(2016).
-9-
Yet, a bedrock principle of our criminal justice system is that every effort
must be made in any trial—regardless of whether the case involves such heart-
wrenching circumstances—to ensure that the jurors base their decision, not on
sympathy for the victim or prejudice against the defendant, but solely on the facts
elicited during trial and the law instructed by the trial court. The State’s burden is
to prove the elements of the crime beyond a reasonable doubt. When the State
instead uses closing argument to appeal to the jury’s sense of outrage at what
happened to the victim and asks the jurors to return a verdict that brings “justice”
to the victim, the State perverts the purpose of closing argument and engages in the
very type of argument that has been repeatedly condemned as antithetical to the
foundation of our criminal justice system that guarantees a fair trial to every
accused.
In Ruiz v. State, this Court explained the role of attorneys in every criminal
trial, emphasizing in particular the important role of the prosecutor:
A criminal trial is a neutral arena wherein both sides place evidence
for the jury’s consideration; the role of counsel in closing argument is
to assist the jury in analyzing that evidence, not to obscure the jury’s
view with personal opinion, emotion, and nonrecord evidence.
743 So. 2d 1, 4 (Fla. 1999). Further,
The power and force of the government tend to impart an implicit
stamp of believability to what the prosecutor says. That same power
and force allow him, with a minimum of words, to impress on the jury
that the government’s vast investigatory network, apart from the
orderly machinery of the trial, knows that the accused is guilty or has
- 10 -
non-judicially reached conclusions on relevant facts which tend to
show he is guilty.
Id. (quoting Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969)).
The role of the attorney in closing argument is “to assist the jury in
analyzing, evaluating and applying the evidence.” Id. (citing United States v.
Morris, 568 F.2d 396, 401 (5th Cir. 1978)). While “wide latitude is permitted in
closing argument, . . . this latitude does not extend to permit improper argument.”
Gore, 719 So. 2d at 1200 (citation omitted). Closing argument “must not be used
to inflame the minds and passions of the jurors so that their verdict reflects an
emotional response to the crime or the defendant.” Bertolotti v. State, 476 So. 2d
130, 134 (Fla. 1985). A prosecutor must not “unduly create, arouse and inflame
the sympathy, prejudice and passions of [the] jury to the detriment of the accused.”
Urbin, 714 So. 2d at 421 (quoting Barnes v. State, 58 So. 2d 157, 159 (Fla. 1951)).
In this case, defense counsel lodged a significant number of objections in the
closing arguments alone and unsuccessfully sought a mistrial twice. We review
trial court rulings regarding the propriety of comments made during closing
argument for an abuse of discretion. Salazar v. State, 991 So. 2d 364, 377 (Fla.
2008). Where the comments were improper and the defense objected, but the trial
court erroneously overruled defense counsel’s objection, we apply the harmless
error standard of review. See Snelgrove v. State, 921 So. 2d 560, 568 (Fla. 2005);
Doorbal v. State, 837 So. 2d 940, 956-57 (Fla. 2003). This standard involves
- 11 -
placing “the burden on the state, as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the error contributed
to the conviction.” Ibar v. State, 938 So. 2d 451, 466 (Fla. 2006) (citing State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)).
The most troubling aspect of the prosecutor’s closing argument in this case
was the repeated references to seeking “justice for Lazaro,” culminating in the
statement that the “only verdict” that would provide this “justice” was a verdict of
guilty of first-degree murder. But the improprieties hardly stopped there. In
addition to the erroneous “justice for Lazaro” comments, other clearly improper
arguments were made, including repeatedly denigrating the defense case and
calling parts of the defense’s presentation “diversionary tactics”; and making
personal attacks on the defendant, such as calling Cardona a “drama expert” and
comparing her to a character on a “telenovela.”
We emphasize that the defense raised numerous objections to the clearly
improper arguments, often at its own peril, and the trial court compounded the
error by continually overruling these objections. In total, the defense counsel
lodged fifty-eight objections throughout the State’s closing and rebuttal closing
arguments, including both general and specific objections—almost all of which
were overruled. Only four defense objections were sustained and, in one instance,
- 12 -
the prosecutor actually repeated an improper comment after the trial court had
sustained a defense objection. Cardona also moved for a mistrial twice based on
some of the comments, but those attempts were all unsuccessful.
A. “Justice For Lazaro”
The first and most egregious category of clearly improper closing argument
comments involves the State’s repeated and erroneous statements that the case was
about seeking “justice for Lazaro.” These arguments improperly inflamed the
minds and passions of the jurors. The prosecutor began the closing argument as
follows:
Prosecutor: May it please the Court, defense counsel. It’s been
a long couple of weeks, a tough case, and I want to thank you for your
attention and I know it’s been difficult. But now we’re at closing
arguments, and it’s really important. It’s really, it’s really important
to stay focused on what this trial has been about from day one and that
is justice for Lazaro. The defense gave you this. They want you to
play where’s [the other suspect] Gloria, where’s Gloria? It’s a
diversionary tactic.
Defense Counsel: Objection.
The Court: Overruled.
(Emphasis added.) Later in the closing argument, the prosecutor referred to
“justice for Lazaro” again, while urging the jury to look at the photos of Lazaro’s
badly injured body:
Prosecutor: Aggravated child abuse. You heard from Dr.
Hyma . . . . These photos, look at those photos. I know it’s difficult,
it’s really difficult. But this trial is about justice for Lazaro, and we
who labor here seek only truth. You got to look at them.
- 13 -
(Emphasis added.) Subsequently, the prosecutor again reminded the jury about the
state of Lazaro’s body and urged the jury to seek “justice” for him:
Prosecutor: There were 47 injuries that he was able to identify on this
kid. Remember this trial, we who labor seek only the truth. This trial is
about justice for Lazaro.
Defense Counsel: Objection, inflames the jurors’ passion and
misstatement of the law.
The Court: Overruled.
Prosecutor: Justice for Lazaro. Look at the evidence, read her
statement, those injuries are listed for you. . . .
(Emphasis added.) The prosecutor then ended her closing argument in the
following way:
Prosecutor: When you elect that foreman, you have to decide
what’s the truth here, but I’m going to ask you, remember, this trial is
about justice for Lazaro.
Defense Counsel: Objection, inflames the jurors.
The Court: Sustained.
Prosecutor: I’m going to ask [that] when you go into that jury
room, you find her guilty.
Defense Counsel: We have a motion—
....
Prosecutor: Guilty of first-degree murder as charged in the
indictment. This is the only verdict that’s going to give justice for
Lazaro.
Defense Counsel: Objection, improper argument.
The Court: Overruled.
Prosecutor: Thank you.
(Emphasis added.)
The prosecutor’s use of “justice for Lazaro” as the theme of the closing
argument unquestionably crossed the line. The argument that the case is about
“justice” for the victim or the victim’s family has been uniformly condemned. See
- 14 -
Davis v. State, 136 So. 3d 1169, 1197 (Fla. 2014) (determining the argument that
the victim’s siblings would want to know what justice was imposed for the
victim’s murder was improper); Dorsey v. State, 942 So. 2d 983, 986 (Fla. 5th
DCA 2006) (“demanding justice for the victim” was improper); Shaara v. State,
581 So. 2d 1339, 1341 (Fla. 1st DCA 1991) (determining that “the prosecutor’s
comment that the victim was asking the jury for justice” was improper); Edwards
v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983) (criticizing the prosecutor’s
argument, which included: “All I’m going to ask you for is justice. I ask you for
justice both on behalf of myself and the people of the State of Florida, also on
behalf of [victim’s] wife and children.”).
As is evidenced by the case law, this type of comment has been considered
improper under clearly established Florida law for over three decades, including in
cases arising out of Miami-Dade County, the same location where Cardona’s
retrial was held. See Edwards, 428 So. 2d at 359. As the Third District stated in
Edwards:
The prosecutor’s argument was an improper appeal to the jury for
sympathy for the wife and children of the victim, the natural effect of
which would be hostile emotions toward the accused. It is the
responsibility of the prosecutor to seek a verdict based on the
evidence without indulging in appeals to sympathy, bias, passion or
prejudice. Harper v. State, 411 So. 2d 235 (Fla. 3d DCA 1982). . . .
...
- 15 -
When it is made to appear that a prosecuting attorney’s
argument to the jury consists of an appeal to prejudice or sympathy
calculated to unduly influence a trial jury, the trial judge should not
only sustain an objection at the time to such improper conduct when
objection is offered, but should so affirmatively rebuke the offending
prosecuting officer as to impress upon the jury the gross impropriety
of being influenced by improper arguments. Harper v. State, 411 So.
2d at 237, citing Deas v. State, 161 So. 729 (Fla. 1935).
Id.
Moreover, as in Edwards, the defense’s objections in this case were
overruled by the trial court without comment, which “stamped approval on the
argument, thereby aggravating the prejudicial effect.” Id.
In addition to overruling the objections, the trial court finally sustained one
of the defense counsel’s specific objections near the very end of the closing
argument, only for the prosecutor to repeat the improper “justice for Lazaro”
remark as the final line of the State’s closing argument. The defense’s objection to
that comment was overruled, leaving the jury with the distinct impression that it
was entirely proper to consider that a verdict of first-degree murder was the only
way to obtain “justice for Lazaro.” The trial court’s error in overruling the
objections was made worse by the fact that no curative instruction was ever given
as to the “justice for Lazaro” comments.
The impermissible appeal to the jurors’ emotions by emphasizing that the
trial was about “justice for Lazaro” was exacerbated by the fact that in nearly the
same breath as some of the “justice for Lazaro” comments, the prosecutor
- 16 -
attempted to shift the burden of proof beyond a reasonable doubt by urging the jury
to convict Cardona based on what was “true” and linked “justice for Lazaro” with
the “truth.” As we have stated, “it is error for a prosecutor to make statements that
shift the burden of proof and invite the jury to convict the defendant for some
reason other than that the State has proved its case beyond a reasonable doubt.”
Gore, 719 So. 2d at 1200.
We conclude that the preserved improper “justice for Lazaro” comments,
which pervaded the prosecutor’s closing argument, were not harmless beyond a
reasonable doubt. A new trial is therefore required. The existence of additional
improper remarks—most of which were also preserved but some of which were
not—further buttresses our conclusion that a new trial is necessary.
B. Denigration of the Defense and the Defendant
The other improper remarks that pervaded the closing arguments and were
preserved by contemporaneous objections include those in which the prosecutor
denigrated the defense counsel and Cardona herself. The prosecutor did this by
repeatedly accusing the defense of using “diversionary tactics.” In the same vein,
the prosecutor also warned the jurors that the defense would “cloud” and “muddle”
the issues, mocked the defense closing argument as a “magnificent display . . . a
real show” and suggested that defense counsel was being dishonest.
- 17 -
Cardona describes the prosecutor’s use of the word “diversionary” as being
the anchoring “refrain” of the State’s closing argument. In fact, the “diversionary
tactics” refrain was intertwined with the improper “justice for Lazaro” argument
throughout the closing argument. For example, right after making the first “justice
for Lazaro” argument, the State began its theme that the defense was a
“diversionary tactic.” After the defense’s first objection was overruled, the
prosecutor continued:
Prosecutor: It’s a diversionary tactic because they don’t [want]
you to focus on this statement, the statement that, that woman made
on December 6, 1990. She had a lot to say, and in these words, if you
listen to that statement, you read these words, you read in between the
lines, you listen to what she says and what she doesn’t say. And you
get to the conclusion of what really happened to Lazaro. Diversionary
tactics and—
Defense Counsel: Objection to the diversion of the defense.
The Court: Overruled.
(Emphasis added.)
The prosecutor repeated this “diversion” theme again and again. For
instance, the prosecutor stated:
They didn’t know who [the child] was. This was out and about.
Have you seen this little boy, who’s this two-year-old boy? She saw
it. She saw it her statement, page number 72. I saw it on the news. I
wanted to call you, but I didn’t. Where is Gloria? Diversionary
tactic.
(Emphasis added.) And later still, the prosecutor continued with the refrain, stating
“that is not the first time that he had a diaper taped to him for Lord knows how
- 18 -
long . . . . Taped to him. So it’s like a body cast. That’s outrageous. That is
outrageous. Where is Gloria? Diversionary.” (Emphasis added.) The prosecutor
also accused the defense of “cloud[ing]” and “muddl[ing]” the issues. The defense
counsel objected to each and every one of these comments, and the trial court
overruled the defense’s objections.
After the prosecutor used the term “diversionary” one last time, the defense
objected, and the trial court asked the attorneys to approach the bench for a sidebar
conference. During the sidebar conference, the trial court explained that it had
overruled the objections because it did not find, after reading the decision in Suggs
v. State, 923 So. 2d 419 (Fla. 2005), that use of the word “diversionary” alone was
sufficient to violate a defendant’s right to a fair trial. After the prosecutor had
already used the term seven times in characterizing the defense case, the trial court
finally asked the prosecutor to refrain from using the word because, “taken in an
abundance of caution, diversionary is looked upon by some with concern.” The
defense counsel requested a curative instruction. The trial court said it would
consider it, but never gave any curative instruction regarding the “diversionary”
remarks.
The trial court’s reliance on Suggs to overrule the repeated objections to the
use of the theme “diversionary tactics” to belittle the defense case was misplaced.
Suggs was a postconviction case involving an ineffective assistance of counsel
- 19 -
claim as to counsel’s failure to object to parts of the prosecution’s closing
argument. The standard in a postconviction case for establishing prejudice in the
context of an ineffective assistance of counsel claim, based on the failure to object
to closing argument, is entirely different than the standard used in a direct appeal
for determining whether the arguments themselves are improper and, if objected-to
and overruled, whether they are harmless beyond a reasonable doubt. Further, the
defense in Suggs apparently had a tactical reason for not objecting. In that case,
this Court merely stated that as long as the prosecutor did not “dwell” upon the
improper comments and they were not severely inflammatory or damaging,
counsel was not ineffective in failing to object. Id. at 433. Here, in contrast, the
prosecutor did “dwell” on them, and the defense counsel did object—repeatedly.
After the trial court asked the prosecutor to refrain from using the word
“diversionary,” the prosecutor simply used a different expression to denigrate the
defense during the State’s rebuttal closing argument:
Prosecutor: You never heard about a lot of people and a lot of
things that were said, but you did see a magnificent display here, a
real show here—
Defense Counsel: Objection, denigration of the defense.
The Court: Overruled.
All of the remarks about the defense using a “diversionary tactic,” putting on
a “magnificent display,” or “cloud[ing]” and “muddl[ing]” the issues are similar to
some of the improper comments made by the prosecutor in D’Ambrosio v. State,
- 20 -
736 So. 2d 44, 45 (Fla. 5th DCA 1999), which compelled the Fifth District Court
of Appeal to reverse and remand for a new trial. In that case, the Fifth District
stated that “[r]epeatedly referring to the defendant’s defense as innuendo,
speculation and ‘a sea of confusion’ that defense counsel ‘prays you will get lost
in’ is an improper attack of the defense and defense counsel.” Id. at 48. All of
these arguments used by the prosecutor in this case were clearly improper, falling
well outside the realm of proper trial advocacy. The remarks were not isolated and
were repeatedly objected to, and when those objections were overruled, it again
stamped the judge’s imprimatur of approval on the improper remarks.
The prosecutor also impermissibly denigrated Cardona herself. The
prosecutor compared her to a character on a telenovela, which was a racially
charged comment that served no purpose other than to ridicule Cardona.
Additionally, the prosecutor relied on facts not in evidence, over objection,
referring to Cardona’s “party days,” when “she used to party with her friends;”
lived “that high life” and “received a lot of money, a great sum of money from
people that owed [Fidel Figueroa] money.” None of that information was ever
presented to the jury or was part of the evidence in this case. Such comments were
improper and only serve to exacerbate the problems inherent in the prosecutor’s
closing arguments.
- 21 -
C. Conclusion Regarding Closing Argument
In this case, the prosecutor repeatedly crossed the line into improper
argument, thereby perverting the purpose of closing argument and exceeding the
bounds of appropriate advocacy. The vast majority of the improper comments in
this case, including the worst of them—the “justice for Lazaro” and “diversionary”
comments that pervaded the prosecutor’s argument—were preserved. Indeed, we
have decided that allowing the prosecutor to repeatedly invoke “justice for Lazaro”
was in itself not harmless beyond a reasonable doubt, and therefore, a new trial is
required. Our conclusion is further buttressed by the numerous other improper
comments that pervaded the State’s closing arguments, namely comments that
denigrated the defense and Cardona herself.
II. Other Issues Raised
We also address certain other issues that are likely to arise on retrial.
Specifically, we consider three other issues—whether the trial court erred in
refusing to consider certain IQ tests for purposes of Cardona’s intellectual
disability claim and the two cross-appeal claims raised by the State related to the
penalty phase.
A. IQ Tests
Before trial, Cardona filed a motion to determine if she was intellectually
disabled, which the trial court denied following an evidentiary hearing. Cardona
- 22 -
argues that the trial court erred in refusing to consider her IQ scores when
addressing her intellectual disability claim. We agree and address the IQ test issue
because it will arise if Cardona again raises intellectual disability as a bar to
execution and as mitigation.
Prior to this retrial, Cardona alleged that she suffered from an intellectual
disability, which would make her ineligible for the death penalty. In order to prove
intellectual disability, a defendant must show “significantly subaverage intellectual
functioning, deficits in adaptive functioning (the inability to learn basic skills and
adjust behavior to changing circumstances), and onset of these deficits during the
developmental period.” Hall v. Florida, 134 S. Ct. 1986, 1994 (2014). A hearing
was held prior to the guilt phase, during which numerous psychologists and
psychiatrists testified regarding tests they had administered on Cardona. After
reviewing all of the evidence, the trial court concluded that there was no clear and
convincing evidence that Cardona is intellectually disabled because there was no
valid IQ test with a score below 70 and there was no clear and convincing evidence
that she has deficits in adaptive functioning.
Three experts tested Cardona’s IQ, and all of them attempted to
accommodate the fact that Cardona is of Cuban descent, and her primary language
is Spanish. One expert examined Cardona in February 1992 and tested her with
the Wechsler Adult Intelligence Scale-Revised (WAIS-R) and the Escala de
- 23 -
Inteligencia de Wechsler para Adultos (EIWA), testifying that the difference
between these two tests was important because some of the questions are culture-
based. When administering the WAIS-R, he translated the WAIS-R into Spanish
and then translated Cardona’s answers into English, which he recognized
compromised the test’s validity somewhat. However, according to this expert, in
such situations, translating the test in such a manner is an acceptable practice
because although a standardized test in the native language of the person being
tested is ideal, it is not always possible. A second expert administered the WAIS-
III—an IQ test in English—and translated it into Spanish. Cardona received a 61
as her verbal IQ score and a performing IQ score of 68, with a full scale IQ score
of 61. Finally, a third expert approached the language problem by administering
the WAIS-III performance subtest but not the verbal portion of the IQ test. On the
WAIS-III subtest, Cardona obtained a performing IQ score of 72. By the time this
third expert evaluated Cardona, the EIWA was too old and was no longer in print.
The trial court denied Cardona’s motion because Cardona failed to prove
that she has an IQ below 70, and rejected these IQ scores because the experts
administered a version of the WAIS by translating the test into Spanish and then
translating Cardona’s responses into English. The trial court mentioned that it was
confined by the Florida Administrative Code, which permits only specific tests,
such as the Stanford-Binet Intelligence Scale, the Wechsler Intelligence Scale, and
- 24 -
other valid tests that are administered and interpreted by trained personnel in
conformance with the instructions provided by the producer of the test.
To the extent that the trial court’s conclusion is based upon a lack of “valid
WAIS” scores, the trial court erred. The trial court interpreted the language of the
Florida Administrative Code too rigidly and effectively discarded the
accommodations made by all of the trained experts to overcome the language
barrier because the WAIS and other similar tests were not produced and normed
for Spanish-speakers.
The intellectual disability proceedings in this case occurred prior to the
Supreme Court’s decision in Hall. In Hall, the Supreme Court held that Florida’s
rigid application of a definition of intellectual disability violated the Constitution
because it “disregards established medical practice” by taking an IQ score as “final
and conclusive evidence of a defendant’s intellectual capacity, when experts in the
field would consider other evidence” and by relying on a “purportedly scientific
measurement of the defendant’s abilities, his IQ score, while refusing to recognize
that the score is, on its own terms, imprecise.” Hall, 134 S. Ct. at 1995. The trial
court’s order in this case suffers from a similar failing because the experts who
tested Cardona made accommodations that they considered acceptable in the field
in order to provide the best estimate possible as to her IQ, in light of the fact that
the tests available to them were not as reliable in this situation.
- 25 -
The trial court did not have the benefit of the Hall decision at the time it
made its findings. The experts explained that the accommodations that they made
were required because no suitable test was available to Cardona, a Spanish-
speaking woman of Cuban descent. Under Hall, the trial court should not have
discarded the experts’ testing and accommodations based solely on the conclusion
that her IQ results were unreliable because they were translated from English.
Therefore, in a subsequent intellectual disability hearing, the trial court
should not disregard the IQ tests that the experts deem most accommodating
considering the cultural and language issues and should also perform a
comprehensive analysis of all three prongs as set forth in Hall and its progeny. See
Oats v. State, Fla. L. Weekly S705 (Fla. Dec. 17, 2015).
B. State’s Cross-Appeal Claims
Finally, the State has also raised two arguments on cross-appeal concerning
the penalty phase, which we also address because they may become an issue in
Cardona’s next retrial. First, the State claims that the trial court abused its
discretion in refusing to permit its mitigation rebuttal expert witness to testify
during the penalty phase. We agree. This was error because the State adequately
proffered and was entitled to present its expert’s testimony for the limited purpose
of rebutting testimony of Cardona’s expert witness as to her mental state. To the
extent the trial court excluded it on the grounds that it would violate Cardona’s
- 26 -
Fifth Amendment rights, it was an abuse of discretion. See Buchanan v. Kentucky,
483 U.S. 402, 423-24 (1987) (stating that the State may introduce the results of a
court-ordered mental health examination for the limited purpose of rebutting a
mental-status defense); see also Kansas v. Cheever, 134 S. Ct. 596, 601 (2013)
(clarifying that Buchanan is applicable where the defendant presented psychiatric
evidence, and is not limited to where the mental state issue is raised as an
affirmative defense).
The other cross-appeal issue that we address is the State’s claim that the trial
court abused its discretion in instructing the jury on and finding the “no significant
criminal history” mitigator without giving the State the opportunity to introduce
evidence to rebut the “no significant criminal history” mitigator. We likewise
agree because Cardona did not assert this mitigator until after the presentation of
evidence had concluded, and by making that assertion, she opened the door to
allow the State to rebut it, so the State should not have been denied the opportunity
to do so.
Thus, we conclude that with respect to both cross-appeal claims raised by
the State, the trial court erred.
CONCLUSION
Based upon the prosecutor’s improper comments that permeated the State’s
closing argument, which repeatedly invoked “justice for Lazaro” and appealed to
- 27 -
the passions of the jury, the “over zealousness in prosecuting the State’s cause
actually worked against justice, rather than for it.” Gore, 719 So. 2d at
1203. Accordingly, we are compelled to vacate Cardona’s convictions and death
sentence and remand for a new trial.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
LEWIS and CANADY, JJ., concur in result.
POLSTON, J., dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Miami-Dade County,
Reemberto Diaz, Judge - Case No. 131990CF048092B000XX
Carlos Jesus Martinez, Public Defender, and Andrew McBride Stanton, Assistant
Public Defender, Eleventh Judicial Circuit, Miami, Florida,
for Appellant/Cross-Appellee
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Sandra Sue Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee/Cross-Appellant
- 28 -