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Jose Jimenez vs State of Florida


MR. CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE WEDNESDAY ORAL ARGUMENT CALENDAR AT THE FLORIDA SUPREME COURT. AND THE FIRST CASE ON THE COURT'S CALENDAR THIS MORNING IS JIMENEZ VERSUS STATE OF FLORIDA. MR. CASUSO.

GOOD MORNING. LOUIS CASUSO ON BEHALF OF MR. JIMENEZ. MAY IT PLEASE THE COURT. THIS IS AN APPEAL FROM THE SUMMARY DENIAL OF A 3.850 MOTION. BASED ON THIS COURT'S OPINION ON DELGADO VERSUS STATE, WHICH RECEDED FROM THIS COURT'S OPINION AFFIRMING APPELLANT'S CONVICTION. OUR ARGUMENT IS THAT, UNDER THE DELGADO OPINION, NOW THE BURGLARY COUNT IN THE JIMENEZ CASE SHOULD NOT STAND, AND THE FIRST-DEGREE MURDER CONVICTION SHOULD BE REVERSED, BASED ON THE FACT THAT THE STATE ARGUED FELONY MURDER AT THE TIME THAT THE DEFENDANT WAS CONVICTED, AND HE RECEIVED THE DEATH PENALTY. UNDER THE DELGADO OPINION, THE BURGLARY CASE, THIS WAS RAISED AT THE TRIAL COURT. IT WAS RAISED ON DIRECT APPEAL TO THIS COURT, AND IT WAS, AGAIN RAISED ON MY 3.850 MOTION. BASED ON DELEGATE--- ON DELGADO, THE BURGLARY CONVICTION SHOULD NOT STAND.

DON'T YOU HAVE A PROBLEM, THOUGH, THAT WE HAVEN'T RETROACTIVELY APPLIED DELGADO, AND THE JUDGMENT IN YOUR CLIENT'S CASE WAS FINAL AT THE TIME DELGADO WAS ISSUED. HOW CAN YOU OVERCOME THAT?

IN FACT, THE VERY LANGUAGE IN DELGADO SAYS IT WILL NOT BE RETROACTIVE.

IT WOULDN'T BE RETROACTIVE, YOUR HONOR, BUT THE ISSUE WAS RAISED, AT THE TRIAL LEVEL, ON THE MOTION AT THE END OF THE STATE'S CASE, AND, AGAIN, IT WAS RAISED BEFORE THIS COURT, EVEN THOUGH IT IS NOT RETROACTIVE. I MEAN, THE LAW, THE LAW HAS CHANGED. AND I DON'T THINK IT IS FAIR TO GIVE THIS MAN THE DEATH PENALTY ON, YOU KNOW, ON A LAW THAT DOESN'T EXIST ANYMORE. THE FACTS, IF WE WERE TO TRY THIS CASE AGAIN, THE JUDGE WOULD NOT HAVE -- COULDN'T LET THE BURGLARY COUNT STAND, AND WHAT GAVE THIS MAN THE DEATH PENALTY WAS THE FELONY MURDER. THERE IS A DIFFERENCE, WE FEEL, BETWEEN WHAT COULD HAVE BEEN AN ARGUMENT AMONG NEIGHBORS. I MEAN, THE RECORD SHOWS, THE LORD SHOWS --

WHAT DOES THE RECORD SHOW, ABOUT THE ISSUE OF WHETHER THERE WAS CONSENT OR NOT, TO ENTER THE PREMISES?

THE RECORD SHOWS THAT THIS WAS A SMALL APARTMENT BUILDING, WHERE PEOPLE WERE FRIENDLY. THEY KNEW EACH OTHER. HE MANAGED, WAS LIVING IN THE APARTMENT BUILDING FOR A YEAR MOREOVER. THERE WAS NO FORCED ENTRY. THERE WAS NOTHING TAKEN FROM THE APARTMENT. THE PEOPLE LIVING IN THE APARTMENT KNEW EACH OTHER. THE RECORD, ALSO, SHOWS THAT, AT THE TIME THAT THE -- THAT THE MURDER OCCURRED, MR. JIMENEZ WAS PERMITTED INTO A NEIGHBOR'S HOUSE, TO MAKE A PHONE CALL, SO THE RECORD, WE FEEL, DOESN'T SHOW A BREAKING. WHAT IT SHOWS IS THAT IT COULD OR VERY WELL HAVE BEEN A CONSENTUAL ENTRY, AND VERY FRANKLY, I MEAN, IF THIS MAN, IF THIS MAN HAD TESTIFIED THAT HE WAS LET INTO THE APARTMENT, IT WOULDN'T HAVE MADE ANY DIFFERENCE UNDER THE LAW AT THAT TIME. WHAT MADE IT -- THAT IS WHAT THE RECORD SHOWS, AS FAR AS A CONSENTUAL ENTRY, THAT THEY KNEW EACH OTHER.

WELL, DID HE RAISE, AS AN AFFIRMATIVE DEFENSE, THAT HE HAD CONSENT?

NO, HE DID NOT. HIS DEFENSE AT THE TIME WAS THAT IT WASN'T HIM. THAT WAS HIS DEFENSE AT THE TIME.

BUT DIDN'T THE LAW REQUIRE THAT, IF THIS ISSUE WAS GOING TO BE RAISED, THAT IT MUST BE RAISED AS AN AFFIRMATIVE DEFENSE?

WELL, QUITE FRANKLY, JUDGE, AT THE TIME THAT THE LAW, AT THE TIME BEFORE DELGADO, IT WOULDN'T HAVE MADE ANY DIFFERENCE, HAD HE SAID "SHE LET ME IN", IT STILL WOULD HAVE BEEN A FIRST-DEGREE MURDER CASE. THE PROBLEM THAT WE HAVE HERE IS THAT THE REASON THIS MAN RECEIVED THE DEATH PENALTY IS BECAUSE THERE IS A HUGE DIFFERENCE BETWEEN TWO NEIGHBORS HAVING AN ARGUMENT AND THIS MAN KILLING THIS WOMAN, AS OPPOSED TO SOME BURGLAR, WHICH IS WHAT HE WAS PORTRAYED AS, SOME BURGLAR BREAKING INTO SOME LADY'S HOUSE, I GUESS TO GET DRUGS. THIS IS WHAT THE IMPLICATION WAS BECAUSE THERE WAS --

WASN'T THERE MORE SERIOUS AGGRAVATION, THOUGH, FOUND, THAN JUST A BURGLARY? WHAT WERE THE OTHER AGGRAVATORS? WHAT WAS THE OTHER AGGRAVATION?

HIS PRIOR RECORD FOR BURGLARY.

THERE WAS NO OTHER AGGRAVATION FOUND?

WELL, THE FACT THAT THE MURDER HAPPENED FOR PECUNIARY GAIN, THE AGE OF THE VICTIM. THOSE WERE AGGRAVATORS. HOWEVER, I MEAN, THIS MAN, THE JURY VOTED 12-TO-0 TO IMPOSE THE DEATH PENALTY IN THIS CASE, AND I MEAN, ANYBODY WHO HAS TRIED THESE CASES, JUDGE, THE WORST AGGRAVATOR HERE, THE VERY WORST THE AGGRAVATOR IS SOME BURGLAR BREAKING INTO SOMEBODY ELSE'S APARTMENT AND STABBING HER TO DEATH. THIS IS THE BOTTOM LINE HERE. WITHOUT THE BURGLARY, WITHOUT THE BURGLARY CONVICTION, WITHOUT THAT AGGRAVATOR, WITHOUT THE FELONY MURDER, THIS VERY WELL COULD HAVE BEEN A SECOND-DEGREE MURDER. IT COULD HAVE BEEN A LIFE RECOMMENDATION.

WAS THE JURY INSTRUCTED ON BOTH FELONY MURDER AND PREMEDITATED MURDER?

YES, YOUR HONOR, AND THE STATE ARGUED FOR FELONY MURDER AND, OF COURSE, PREMEDITATION, BUT THE STATE ARGUED BOTH. THE INDICTMENT ALLEGED BOTH FELONY MURDER AND PREMEDITATION. SO IT IS A GENERAL VERDICT ON THE FIRST-DEGREE MURDER. WE JUST FEEL THAT, UNDER THE FACTS OF THIS CASE, WHERE IT VERY WELL COULD HAVE BEEN A CONSENTUAL ENTRY, THAT THE CONVICTION SHOULD NOT STAND.

HELP ME --

BASED ON DELGADO.

MAYBE I AM -- MAYBE THE INFORMATION I HAVE IS INCORRECT, SO WE NEED TO HAVE THIS. WAS THE HEINOUS, AT ATROCIOUS AND CRUEL AGGRAVATOR FOUND IN THIS?

YES, SIR.

I MEAN, HASN'T THIS COURT REPEATEDLY SAID THAT THAT IS ONE OF THE MOST SERIOUS AGGRAVATORS IN THE WHOLE STATUTORY --

YES, YOUR HONOR.

AND WOULDN'T THAT ORDINARILY BE RATED AS A MORE SERIOUS AGGRAVATOR, IF WE ARE GOING TO GIVE SOME SORT OF SCALE, THAN THE BURGLARY?

IN A WAY, JUDGE, BUT I FEEL, BUT I FEEL THAT THE BURGLARY, THAT THE BURGLARY, WHERE THIS MAN BREAKS INTO THIS WOMAN'S APARTMENT, ONCE THE JURY FINDS IT, AND PLEASE KEEP IN MIND, I MEAN, FELONY MURDER DOESN'T ALLOW FOR ANY LESSER-TYPE SECOND-DEGREE-TYPE SITUATION, AND THIS IS WHAT THE STATE ARGUED. I FEEL, IN THE MINDS OF THE JURY AND THE MINDS OF THE JURY, THIS WAS A WOMAN, SHE WAS STABBED EIGHT TIMES. TRUE, I MEAN, IT IS HEINOUS, AT ATROCIOUS, BUT IT IS NOT THE WORST CASE SCENARIO THAT HAS BEEN PRESENTED TO A JURY IN DADE COUNTY.

WAS THERE ANY EVIDENCE PRESENTED THAT YOUR CLIENT AND THE VICTIM KNEW ONE ANOTHER?

CIRCUMSTANTIALALLY WE FEEL THAT IT WAS PRESENTED. IT WAS NO DIRECT EVIDENCE TESTIFIED TO.

BUT THERE WAS NO EVIDENCE THAT THEY HAD ANY SOCIAL RELATIONSHIP OR EVEN KNEW ONE ANOTHER, OTHER THAN WHAT YOU MIGHT --

OTHER THAN CIRCUMSTANTIAL.

THAT EVERYBODY IN THE APARTMENT BUILDING --

RIGHT. RIGHT.

BUT THERE WAS NO DIRECT EVIDENCE THAT THEY KNEW ONE ANOTHER.

RIGHT. HOWEVER --

WAS THERE ANY EVIDENCE THAT THERE WOULD HAVE BEEN ANY REASON FOR HIM TO BE IN HER APARTMENT?

WELL, JUST FACT THAT IT WAS A SMALL COMPLEX. THE VICTIM HAD BEEN LIVING THERE FOR TEN YEARS. MY CLIENT HAD BEEN LIVING THERE FOR A YEAR. THE EVIDENCE ON THE RECORD IS THAT EVERYBODY KNEW EACH OTHER. EVERYBODY WAS FRIENDLY WITH EACH OTHER. THERE WERE NO PROBLEMS WITH THIS MAN.

BUT THERE WAS ALSO EVIDENCE THAT HE WAS SEEN LEAVING THE APARTMENT THROUGH A REAR BALCONY KIND OF THING.

YES. YES.

WHICH WOULD CERTAINLY BE MORE CONSISTENT WITH A BURGLARY SITUATION, THAN IT WOULD WITH CONSENTUAL ARRANGEMENT, WOULD IT NOT?

WELL, I DON'T THINK THE QUESTION IS HOW HE WAS LEAVING THE APARTMENT. THE QUESTION UNDER DELGADO IS HOW HE ENTERED THE APARTMENT, AND THERE WAS NO BREAKING. AS A MATTER OF FACT, THE DOOR WAS NOT LOCKED. IT WAS OPEN.

DID THIS HAPPEN AT NIGHT AND THE VICTIM WAS IN HER NIGHTGOWN?

THE VICTIM WAS IN A NIGHTGOWN BUT IT HAPPENED, I BELIEVE THE RECORD SHOWS THAT IT HAPPENED AT ABOUT SEVEN OR EIGHT O'CLOCK AT NIGHT. IT WASN'T A LATE HOUR OF THE NIGHT.

THE STATE ALSO HAD AN ALTERNATIVE THEORY OF PREMEDITATION?

OH, YES, BUT THEY ARGUED FELONY MURDER AND PREMEDITATION, BUT FELONY MURDER WAS ARGUED.

JUST SO WE ARE SURE, YOUR ONLY POINT THAT YOU ARE RAISING IN THIS APPEAL IS THE DELGADO ISSUE.

THAT'S MY ONLY POINT.

WHICH HAS ALREADY BEEN DECIDED ADVERSELY. THAT IS THAT IT IS, DELGADO HAS BEEN HELD AS NOT RETROACTIVE TO CASES THAT ARE NOT -- ARE FINAL AT THE TIME THAT --

WE FEEL, EVEN THOUGH THE COURT STATED THAT IT IS NOT RETROACTIVE, I FEEL THAT, IF WE HAVE A CHANGE IN THE LAW, YOU, I MEAN, YOU HAVE TO REVERSE THIS CASE, BASED ON THE FACT THAT THE LAW, THAT WE RAISED IT AT THE TRIAL LEVEL, AND WE RAISED IT ON DIRECT APPEAL, AND NOW THE COURT HAS CHANGED THE LAW. HOWEVER, IT SHOULD APPLY TO THIS MAN, IN ALL FAIRNESS. HE GOT THE DEATH PENALTY, AND I DON'T THINK IT IS FAIR FOR -- TO PENALIZE HIM ON SOMETHING THAT THE LAW, THAT THE LAW HAS CHANGED. I MEAN, THIS ISN'T A PROCEDURAL ISSUE. THIS IS A SUBSTANTIVE LEGAL ISSUE, AND YOU KNOW, UNDER DPEL DELGADO AND WHERE WE -- UNDER DELGADO AND WHERE WE RAISED IT BEFORE, I DON'T THINK THAT THE CONVICTION SHOULD STAND. THANK YOU.

MAY IT PLEASE THE COURT. SANDRA JAGGARD, ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE STATE. THIS COURT HAS ALREADY HELD THAT DELGADO DOES NOT APPLY RETROACTIVELY. THIS CASE WAS FINAL AT THE TIME THAT DELGADO WAS RELEASED AND THEREFORE IT DOES NOT APPLY. THIS WAS NOT A CONSENT CASE. IT WAS A MISIDENTIFICATION DEFENSE CASE. THE EVIDENCE WAS THAT THE VICTIM WAS IN HER NIGHTGOWN. THAT THE LIGHTS WERE OFF IN HER APARTMENT AT THE TIME THAT THE NEIGHBORS HEAR THE ATTACK GOING ON, AND THAT SHE IS FOUND IN HER NIGHTGOWN, BETWEEN HER BEDROOM AND HER FRONT DOOR, AS IF SHE HEARD SOMEBODY COME IN. THE EVIDENCE WAS SHE ROUTINELY LEFT HER DOOR UNLOCKED. THERE IS NO BREAK-IN REQUIREMENT UNDER THE FLORIDA STATUTE. THE LEGISLATURE ELIMINATED THAT IN 1974, AND THEREFORE THE FACT THERE WAS NO BREAKING DOESN'T MAKE IT NOT A BURGLARY.

DID YOU SAY THAT SHE ROUTINE ROUTINELY LEFT HER DOOR OPEN?

UNLOCKED. YES. AND THE EVIDENCE WAS THAT THE NEIGHBORS HEAR THE ATTACK GOING ON AND TRY AND GET IN THE DOOR. THE DOOR IS STILL UNLOCKED. THEY LOOK THROUGH THE WINDOW. THE DOOR SLAMS SHUT IN THEIR FACES. THERE ARE FINGERPRINTS ON THE BACK OF THE DOOR FROM WHERE HE DID THAT. THE NEIGHBORS GO TO THE WINDOW AND LOOK IN. THE LIGHTS ARE OUT. WHEN THE CRIME SCENE DETECTIVES GET THERE, THE LIGHTS ARE OUT. THIS IS A 68-YEAR-OLD WOMAN, WHERE THERE IS NO EVIDENCE THAT SHE ACTUALLY KNEW THE DEFENDANT AT ALL, AND TO SAY THAT A 68-YEAR-OLD WOMAN ALLOWED THIS MAN IN HER APARTMENT AT NIGHT, WHEN SHE IN HER NIGHTGOWN, WITH THE LIGHTS OUT IN HER APARTMENT, STRETCHES CREDIBILITY. THIS IS NOT A CONSENT CASE. THE STATE BASICALLY DIDN'T ARGUE IT AS A CONSENT CASE IN THE TRIAL COURT.

WHAT ABOUT THE PREMEDITATION? WHAT WAS THE STATE'S ARGUMENT ON PREMEDITATION?

THAT TO BEAT SOMEONE AND STAB THEM EIGHT TIMES, YOU HAD TO HAVE MEANT TO KILL THEM, PARTICULARLY WHERE THIS ONE STAB WOUND GOES INTO THE HEART, THROUGH THE CENTER OF THE CHEST. WITH REGARD TO JUSTICE ANSTEAD'S QUESTION ABOUT WHAT THE AGGRAVATORS WERE IN THIS CASE, THEY WERE PRIOR VIOLENT FELONY, BASED ON A PRIOR RESISTING ARREST WITH VIOLENCE CONVICTION, UNDER A SENTENCE OF IMPRISONMENT  IMPRISONMENT. THE DEFENDANT WAS ON COMMUNITY CONTROL IN THAT APARTMENT. DURING THE COURSE OF A BURGLARY AND HEINOUS, AT ATROCIOUS AND CRUEL. THE COURT HAS NO FURTHER QUESTIONS, THE STATE WOULD REQUEST YOU AFFIRM.

VERY BRIEFLY, LET ME ADDRESS THE ISSUE ABOUT THE LIGHTS BEING OFF. THE LIGHTS ARE SEEN OFF. SOME OF THE NEIGHBORS HEAR A THUMP, AND THEY GO TO THE VICTIM'S APARTMENT. AT THE TIME THAT THEY WENT TO THE VICTIM'S APARTMENT, THE LIGHTS WERE OFF. THAT DOESN'T MEAN THAT, AT THE TIME THAT THE ARGUMENT HAPPENED, THAT THE MURDER HAPPENED, THE LIGHTS, THERE IS NOTHING IN THE RECORD AS TO WHETHER THEY WERE ON OR OFF. THE FACT THEY SAID WHEN THEY RESPONDED TO THE VICTIM'S APARTMENT, THE LIGHTS WERE OFF AT THAT TIME, IT DOESN'T MEAN THAT THIS MAN GOT IN THERE WHEN THE LIGHTS WERE, WHEN THE LIGHTS WERE OFF. SECOND OF ALL, THE STATE DID ARGUE. THEY DID -- ASIDE FROM PREMEDITATION, THE STATE ARGUED FELONY MURDER, AND THEY ARGUED CONSENT. OF COURSE THE STATE ARGUED EVEN IF THIS MAN WAS THERE WITH CONSENT, IT WOULD MAKE IT A MURDER, BECAUSE IF YOU COMMIT A CRIME, EVEN IF YOU HAVE CONSENT, IF YOU COMMIT A CRIME IN A HOME, IT IS STILL FELONY MURDER, SO THE STATE DID ARGUE THAT, AND THEY RELIED ON THAT VERY HEAVILY FOR THE CONVICTION. THANK YOU.