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IN THE SUPREME COURT OF FLORIDA
2013 MAR -8 PH 1 34
PABLO IBAR
BY shyAppellant
v Case No SC12-2619
STATE OF FLORIDA
Appellee
RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS
PAMELA JO BONDI
ATTORNEY GENERAL
LESLIE T CAMPBELL ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631
Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail Leslie Campbellmyf loridalegal com
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
COUNSEL FOR APPELLEE
TABLE OF CONTENTS PAGE
TABLE OF CONTENTSii
TABLE OF CITATIONSiv
PRELIMINARY STATEMENT1
OVERVIEW1
STATEMENT OF THE CASE AND FACTS 2
Case Timeline 2 Facts of the Crimes5 The Jury Penalty Phase 7 Spencer Hearing 7 Sentencing and Attendant Trial Court Findings 7 Postconviction Proceedings 9
ARGUMENT11 CLAIM I IBAR S CHALLENGE TO THE HARMLESS ERROR ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7shy22 RESTATED)11
Overview 11 A The Standard of ReviewError Bookmark not defined B The Florida Supreme Courts Ruling on Direct Appeal 12 C The Claim Is Barred13 D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar Error Bookmark not defined
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIZONA CALIM IS PROCEDURALLY BARRED (P 7-22 RESTATED) 23
Overview 23 A The Standard of Review 24 B The Florida Supreme Courts Ruling on Direct Appeal 24 C The Claim Is Barred26 D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Prcedural Bar 27
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO CHALLENGE ON
||
APPEAL THE ADMISSION OF GARY FOYS IDENTIFICATION TESTIMONY
AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID NOT HAVE THE OPPORTUNITY TO ATTEND
(P 31-44 RESTATED) 28
Overview 28 A The Standard of Review 28 B Appellate Counsel Rendered Ef fective Assistance 31
1 Whether the failure to challenge the admission of Gary Foy s testimony on grounds the identification procedures were unduly suggestive was ineffective assistance32 2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive evidenece was ineffective assistance 41
CONCLUSION50
CERTIFICATE OF SERVICE 50
CERTIFICATE OF COMPLIANCE 51
111
TABLE OF CITATIONS
Cases
Archer v State 613 So2d 446 (Fla 1993) 42
Atkins v Dugger 541 So2d 1165 (Fla 1989) 3C
Baker v State 71 So3d 802 (Fla 2011) 26 2
Blackwelder v State 851 So2d 650 (Fla2003)2
Blanco v Wainwright 507 So 2d 1377 (Fla 1987) 3
Bottoson v Moore 833 So2d 693 (Fla 2002)2
Brady v Maryland 373 US 83 (1963) S
Chapman v California 386 US 18 (1967) 1
Chavez v State 12 So3d 199 (Fla 2009) 3
Connor v State 803 So2d 598 (Fla 2001) 3
Crawford v Washington 541 US 36 (2004) 41 4
Darling v State 966 So2d 366 (Fla 2007) 2
Davis v Alaska 415 US 308 (1974) 4
Davis v Washington 547 US 813 (2006) 4
Delhall v State 95 So3d 134 (Fla 2012) 4
Doorbal v State 837 So2d 940 (Fla 2003) 22
Duest v State 855 So2d 33 (Fla 2003) 2
Edwards v State 538 So2d 440 (Fla 1989) 3S
Frances v State 970 So2d 806 (Fla 2007) 2
Freeman v State 761 So2d 1055 (Fla 2000) 29 3C
Gorby v State 630 So2d 544 (Fla 1993) 35
IV
Grant v State 390 So2d 341 (Fla 1980) 3E
Green v State 641 So2d 391 (Fla 1994) 3E
Hardwick v Dugger 648 So2d 100 (Fla 1994) passin
Holland v Florida 130 SCt 2549 (2010) leuro
Hurst v State 819 So2d 689 (Fla 2002) 21
Ibar v Florida 549 US 1208 (2007) 2
Ibar v State 938 So2d 451 (Fla 2006)passin
Jbnes v Mbore 794 So 2d 579 (Fla 2001) 3C
King v Mbore 831 So2d 143 (Fla 2002)25
Knight v State 394 So2d 997 (Fla 1981) 2S
Kbkal v Dugger 718 So2d 138 (Fla 1998) 3]
Macias v State 673 So2d 176 (Fla 4th DCA 1996) 35
Marshall v Crosby 911 So2d 1129 n5 (Fla 2005)2E
Martin v Wainwright 497 So2d 872 (Fla 1986) 3S
Medina v Dugger 586 So2d 317 (Fla 1991) 3C
Moore v State 452 So2d 559 (Fla 1984) 47 4E
Muehlman v State 3 So3d 1149 (Fla 2009) If
Neil v Biggers 409 US 188 (1972) 3E
Parker v Dugger 550 So2d 459 (Fla 1989)11 15 21
Parker v State 873 So2d 270 (Fla 2004) leuro
Patton v State 878 So2d 368 (Fla 2004) 42
Penalver v State 926 So2d 1118 (Fla 2006)5 1S
Peterson v State 94 So3d 514 (Fla 2012) 26 2E
Petit v State 92 So3d 906 (Fla 4th DCA 2012) 41 45 4euro
V
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
TABLE OF CONTENTS PAGE
TABLE OF CONTENTSii
TABLE OF CITATIONSiv
PRELIMINARY STATEMENT1
OVERVIEW1
STATEMENT OF THE CASE AND FACTS 2
Case Timeline 2 Facts of the Crimes5 The Jury Penalty Phase 7 Spencer Hearing 7 Sentencing and Attendant Trial Court Findings 7 Postconviction Proceedings 9
ARGUMENT11 CLAIM I IBAR S CHALLENGE TO THE HARMLESS ERROR ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7shy22 RESTATED)11
Overview 11 A The Standard of ReviewError Bookmark not defined B The Florida Supreme Courts Ruling on Direct Appeal 12 C The Claim Is Barred13 D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar Error Bookmark not defined
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIZONA CALIM IS PROCEDURALLY BARRED (P 7-22 RESTATED) 23
Overview 23 A The Standard of Review 24 B The Florida Supreme Courts Ruling on Direct Appeal 24 C The Claim Is Barred26 D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Prcedural Bar 27
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO CHALLENGE ON
||
APPEAL THE ADMISSION OF GARY FOYS IDENTIFICATION TESTIMONY
AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID NOT HAVE THE OPPORTUNITY TO ATTEND
(P 31-44 RESTATED) 28
Overview 28 A The Standard of Review 28 B Appellate Counsel Rendered Ef fective Assistance 31
1 Whether the failure to challenge the admission of Gary Foy s testimony on grounds the identification procedures were unduly suggestive was ineffective assistance32 2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive evidenece was ineffective assistance 41
CONCLUSION50
CERTIFICATE OF SERVICE 50
CERTIFICATE OF COMPLIANCE 51
111
TABLE OF CITATIONS
Cases
Archer v State 613 So2d 446 (Fla 1993) 42
Atkins v Dugger 541 So2d 1165 (Fla 1989) 3C
Baker v State 71 So3d 802 (Fla 2011) 26 2
Blackwelder v State 851 So2d 650 (Fla2003)2
Blanco v Wainwright 507 So 2d 1377 (Fla 1987) 3
Bottoson v Moore 833 So2d 693 (Fla 2002)2
Brady v Maryland 373 US 83 (1963) S
Chapman v California 386 US 18 (1967) 1
Chavez v State 12 So3d 199 (Fla 2009) 3
Connor v State 803 So2d 598 (Fla 2001) 3
Crawford v Washington 541 US 36 (2004) 41 4
Darling v State 966 So2d 366 (Fla 2007) 2
Davis v Alaska 415 US 308 (1974) 4
Davis v Washington 547 US 813 (2006) 4
Delhall v State 95 So3d 134 (Fla 2012) 4
Doorbal v State 837 So2d 940 (Fla 2003) 22
Duest v State 855 So2d 33 (Fla 2003) 2
Edwards v State 538 So2d 440 (Fla 1989) 3S
Frances v State 970 So2d 806 (Fla 2007) 2
Freeman v State 761 So2d 1055 (Fla 2000) 29 3C
Gorby v State 630 So2d 544 (Fla 1993) 35
IV
Grant v State 390 So2d 341 (Fla 1980) 3E
Green v State 641 So2d 391 (Fla 1994) 3E
Hardwick v Dugger 648 So2d 100 (Fla 1994) passin
Holland v Florida 130 SCt 2549 (2010) leuro
Hurst v State 819 So2d 689 (Fla 2002) 21
Ibar v Florida 549 US 1208 (2007) 2
Ibar v State 938 So2d 451 (Fla 2006)passin
Jbnes v Mbore 794 So 2d 579 (Fla 2001) 3C
King v Mbore 831 So2d 143 (Fla 2002)25
Knight v State 394 So2d 997 (Fla 1981) 2S
Kbkal v Dugger 718 So2d 138 (Fla 1998) 3]
Macias v State 673 So2d 176 (Fla 4th DCA 1996) 35
Marshall v Crosby 911 So2d 1129 n5 (Fla 2005)2E
Martin v Wainwright 497 So2d 872 (Fla 1986) 3S
Medina v Dugger 586 So2d 317 (Fla 1991) 3C
Moore v State 452 So2d 559 (Fla 1984) 47 4E
Muehlman v State 3 So3d 1149 (Fla 2009) If
Neil v Biggers 409 US 188 (1972) 3E
Parker v Dugger 550 So2d 459 (Fla 1989)11 15 21
Parker v State 873 So2d 270 (Fla 2004) leuro
Patton v State 878 So2d 368 (Fla 2004) 42
Penalver v State 926 So2d 1118 (Fla 2006)5 1S
Peterson v State 94 So3d 514 (Fla 2012) 26 2E
Petit v State 92 So3d 906 (Fla 4th DCA 2012) 41 45 4euro
V
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
APPEAL THE ADMISSION OF GARY FOYS IDENTIFICATION TESTIMONY
AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID NOT HAVE THE OPPORTUNITY TO ATTEND
(P 31-44 RESTATED) 28
Overview 28 A The Standard of Review 28 B Appellate Counsel Rendered Ef fective Assistance 31
1 Whether the failure to challenge the admission of Gary Foy s testimony on grounds the identification procedures were unduly suggestive was ineffective assistance32 2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive evidenece was ineffective assistance 41
CONCLUSION50
CERTIFICATE OF SERVICE 50
CERTIFICATE OF COMPLIANCE 51
111
TABLE OF CITATIONS
Cases
Archer v State 613 So2d 446 (Fla 1993) 42
Atkins v Dugger 541 So2d 1165 (Fla 1989) 3C
Baker v State 71 So3d 802 (Fla 2011) 26 2
Blackwelder v State 851 So2d 650 (Fla2003)2
Blanco v Wainwright 507 So 2d 1377 (Fla 1987) 3
Bottoson v Moore 833 So2d 693 (Fla 2002)2
Brady v Maryland 373 US 83 (1963) S
Chapman v California 386 US 18 (1967) 1
Chavez v State 12 So3d 199 (Fla 2009) 3
Connor v State 803 So2d 598 (Fla 2001) 3
Crawford v Washington 541 US 36 (2004) 41 4
Darling v State 966 So2d 366 (Fla 2007) 2
Davis v Alaska 415 US 308 (1974) 4
Davis v Washington 547 US 813 (2006) 4
Delhall v State 95 So3d 134 (Fla 2012) 4
Doorbal v State 837 So2d 940 (Fla 2003) 22
Duest v State 855 So2d 33 (Fla 2003) 2
Edwards v State 538 So2d 440 (Fla 1989) 3S
Frances v State 970 So2d 806 (Fla 2007) 2
Freeman v State 761 So2d 1055 (Fla 2000) 29 3C
Gorby v State 630 So2d 544 (Fla 1993) 35
IV
Grant v State 390 So2d 341 (Fla 1980) 3E
Green v State 641 So2d 391 (Fla 1994) 3E
Hardwick v Dugger 648 So2d 100 (Fla 1994) passin
Holland v Florida 130 SCt 2549 (2010) leuro
Hurst v State 819 So2d 689 (Fla 2002) 21
Ibar v Florida 549 US 1208 (2007) 2
Ibar v State 938 So2d 451 (Fla 2006)passin
Jbnes v Mbore 794 So 2d 579 (Fla 2001) 3C
King v Mbore 831 So2d 143 (Fla 2002)25
Knight v State 394 So2d 997 (Fla 1981) 2S
Kbkal v Dugger 718 So2d 138 (Fla 1998) 3]
Macias v State 673 So2d 176 (Fla 4th DCA 1996) 35
Marshall v Crosby 911 So2d 1129 n5 (Fla 2005)2E
Martin v Wainwright 497 So2d 872 (Fla 1986) 3S
Medina v Dugger 586 So2d 317 (Fla 1991) 3C
Moore v State 452 So2d 559 (Fla 1984) 47 4E
Muehlman v State 3 So3d 1149 (Fla 2009) If
Neil v Biggers 409 US 188 (1972) 3E
Parker v Dugger 550 So2d 459 (Fla 1989)11 15 21
Parker v State 873 So2d 270 (Fla 2004) leuro
Patton v State 878 So2d 368 (Fla 2004) 42
Penalver v State 926 So2d 1118 (Fla 2006)5 1S
Peterson v State 94 So3d 514 (Fla 2012) 26 2E
Petit v State 92 So3d 906 (Fla 4th DCA 2012) 41 45 4euro
V
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
TABLE OF CITATIONS
Cases
Archer v State 613 So2d 446 (Fla 1993) 42
Atkins v Dugger 541 So2d 1165 (Fla 1989) 3C
Baker v State 71 So3d 802 (Fla 2011) 26 2
Blackwelder v State 851 So2d 650 (Fla2003)2
Blanco v Wainwright 507 So 2d 1377 (Fla 1987) 3
Bottoson v Moore 833 So2d 693 (Fla 2002)2
Brady v Maryland 373 US 83 (1963) S
Chapman v California 386 US 18 (1967) 1
Chavez v State 12 So3d 199 (Fla 2009) 3
Connor v State 803 So2d 598 (Fla 2001) 3
Crawford v Washington 541 US 36 (2004) 41 4
Darling v State 966 So2d 366 (Fla 2007) 2
Davis v Alaska 415 US 308 (1974) 4
Davis v Washington 547 US 813 (2006) 4
Delhall v State 95 So3d 134 (Fla 2012) 4
Doorbal v State 837 So2d 940 (Fla 2003) 22
Duest v State 855 So2d 33 (Fla 2003) 2
Edwards v State 538 So2d 440 (Fla 1989) 3S
Frances v State 970 So2d 806 (Fla 2007) 2
Freeman v State 761 So2d 1055 (Fla 2000) 29 3C
Gorby v State 630 So2d 544 (Fla 1993) 35
IV
Grant v State 390 So2d 341 (Fla 1980) 3E
Green v State 641 So2d 391 (Fla 1994) 3E
Hardwick v Dugger 648 So2d 100 (Fla 1994) passin
Holland v Florida 130 SCt 2549 (2010) leuro
Hurst v State 819 So2d 689 (Fla 2002) 21
Ibar v Florida 549 US 1208 (2007) 2
Ibar v State 938 So2d 451 (Fla 2006)passin
Jbnes v Mbore 794 So 2d 579 (Fla 2001) 3C
King v Mbore 831 So2d 143 (Fla 2002)25
Knight v State 394 So2d 997 (Fla 1981) 2S
Kbkal v Dugger 718 So2d 138 (Fla 1998) 3]
Macias v State 673 So2d 176 (Fla 4th DCA 1996) 35
Marshall v Crosby 911 So2d 1129 n5 (Fla 2005)2E
Martin v Wainwright 497 So2d 872 (Fla 1986) 3S
Medina v Dugger 586 So2d 317 (Fla 1991) 3C
Moore v State 452 So2d 559 (Fla 1984) 47 4E
Muehlman v State 3 So3d 1149 (Fla 2009) If
Neil v Biggers 409 US 188 (1972) 3E
Parker v Dugger 550 So2d 459 (Fla 1989)11 15 21
Parker v State 873 So2d 270 (Fla 2004) leuro
Patton v State 878 So2d 368 (Fla 2004) 42
Penalver v State 926 So2d 1118 (Fla 2006)5 1S
Peterson v State 94 So3d 514 (Fla 2012) 26 2E
Petit v State 92 So3d 906 (Fla 4th DCA 2012) 41 45 4euro
V
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Grant v State 390 So2d 341 (Fla 1980) 3E
Green v State 641 So2d 391 (Fla 1994) 3E
Hardwick v Dugger 648 So2d 100 (Fla 1994) passin
Holland v Florida 130 SCt 2549 (2010) leuro
Hurst v State 819 So2d 689 (Fla 2002) 21
Ibar v Florida 549 US 1208 (2007) 2
Ibar v State 938 So2d 451 (Fla 2006)passin
Jbnes v Mbore 794 So 2d 579 (Fla 2001) 3C
King v Mbore 831 So2d 143 (Fla 2002)25
Knight v State 394 So2d 997 (Fla 1981) 2S
Kbkal v Dugger 718 So2d 138 (Fla 1998) 3]
Macias v State 673 So2d 176 (Fla 4th DCA 1996) 35
Marshall v Crosby 911 So2d 1129 n5 (Fla 2005)2E
Martin v Wainwright 497 So2d 872 (Fla 1986) 3S
Medina v Dugger 586 So2d 317 (Fla 1991) 3C
Moore v State 452 So2d 559 (Fla 1984) 47 4E
Muehlman v State 3 So3d 1149 (Fla 2009) If
Neil v Biggers 409 US 188 (1972) 3E
Parker v Dugger 550 So2d 459 (Fla 1989)11 15 21
Parker v State 873 So2d 270 (Fla 2004) leuro
Patton v State 878 So2d 368 (Fla 2004) 42
Penalver v State 926 So2d 1118 (Fla 2006)5 1S
Peterson v State 94 So3d 514 (Fla 2012) 26 2E
Petit v State 92 So3d 906 (Fla 4th DCA 2012) 41 45 4euro
V
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Pope v Wainwright 496 So2d 798 (Fla 1986) 2S
Richardson v State 246 So2d 771 (Fla 1971) S
Rimmer v State 825 So2d 304 (Fla 2002) 37 38 35
Ring v Arizona 536 US 585 (2002) claim but it was10 22
Rodriguez de Quijas v ShearsonAmerican Express 490 US 477 (1989) 4S
Rutherford v Moore 774 So2d 637 (Fla 2000) 29 3]
Schoenwetter v State 46 So3d 535 (Fla 2010) 3C
Smithers v State 826 So2d 916 (Fla 2002) 3
State v Akins 69 So3d 261 (Fla 2011)1
State v Belvin 986 So2d 516 (Fla 2008) 45 4
State v DiGuilio 491 So2d 1129 (Fla 1986) 12 13 22
State v Green 667 So2d 756 (Fla 1995) 20 4E
State v Sepulvado 362 So2d 324 (Fla 2d 1978) 35
Steinhorst v State 412 So2d 332 (Fla 1982) 42
Strazulla v Hendrick 177 So2d 1 (Fla 1965) lf
Strickland v Washington 466 US 668 (1984) 2S
Suarez v Dugger 527 So2d 190 (Fla 1988) 3S
Taylor v State 3 So3d 986 (Fla 2009)13 15 2(
Thomas v State 748 So2d 970 (Fla 1999) 3E
Thompkins v Dugger 549 So2d 1370 (Fla 1989) 32
United States v Distler 671 F2d 954 (6th Cir 1981) 4E
Valle v Moore 837 So2d 905 (Fla 2002) 3C
Williamson v Dugger 651 So2d 84 (Fla 1994) 3]
VI
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Wyatt v State 71 So3d 86 n20 (Fla 2011) 11 15 2euro
Statutes
sect90801(2) (a) Fla Stat passin
28 USC sect2254 leuro
section 90801(2) 47 4E
section 90801(2) (c) Florida Statutes (1995) 4
Rules
FlaRAppP 9210(c) 2
Florida Rule of Criminal Procedure 3851 4 11 24
Rule 3850 FlaRCrimP11 12 24
vil
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
PRELIMINARY STATEMENT
This brief will refer to Petitioner as such Defendant or
as Ibar Respondent the State of Florida was the prosecution
below and will be referred to as the prosecution or State
The following are examples of other references
Direct Appeal Record ROA-R in case number SC00-2043
Direct Appeal Trial Transcripts ROA-T in case number SC00-2043
Postconviction record PCR Supplemental records S before the record
supplemented Petition P
The Record citations will be followed by the volume and page
numbers where appropriate
Unless the contrary is indicated bold-typeface emphasis is
supplied cases cited in the text of this brief and not within
quotations are italicized other emphases are contained within
the original quotations
OVERVIEW
On December 21 2012 Ibar filed his Petition for Writ of
Habeas Corpus generally challenging this Courts decision in the
direct appeal following the conviction of three counts of first-
degree murder and related charges of burglary robbery and
attempted robbery and the imposition of the death penalty Ibar
also challenges the effectiveness of his appellate counsel on
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
direct appeal in case number SC00-2043 In his related appeal
of the denial of postconviction relief case number SC12-522
Ibar challenges the denial of postconviction relief following an
evidentiary hearing on claims of ineffective assistance of guilt
phase counsel and the summary denial of other collateral
claims
STATEMENT OF THE CASE AND FACTS
As authorized by FlaRAppP 9210 (c) the State submits its
rendition of the case and facts
Case Timeline DATE EVENT
062694 Casmir Sucharski Sharon Anderson and Marie Rogers murdered See Ibar v State 938 So2d 451 457-58 (Fla 2006)
082594 Pablo Ibar and Seth Penalver were indicted (ROA-R1 2-4)
092994 Corrected Indictment filed (ROA-R1 5-7) 041700 Jury trial began (ROA-T1 1) 042600 Hearing on Reconsideration of Motion to
Suppress (ROA-R10 1401-88) 061400 Ibar was convicted of first-degree murder of
Casmir Sucharski Sharon Anderson and Marie Rogers along with the related counts of burglary robbery and attempted robbery (ROAshyR6 1000-05)
072400 Jury recommended death sentence by nine to three vote (ROA-R6 1021-23)
081400 Spencer hearing (ROA-R6 1082) 082800 Judge Daniel True Andrews sentenced Ibar to
death (ROA-R6 1088-1134)
030906 Opinion on Direct Appeal case number SC00-2043 Ibar v State 938 So2d 451 (Fla 2006)
022007 Denial of Petition for Writ of Certiorari in case number 06-788 Ibar v Florida 549 US 1208 (2007)
021908 Motion for Postconviction Relief filed 103008 Case ManagementHuff Hearing held (PCR11 1667shy
1779)
2
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
DATE EVENT
031609 -031909
121211
Postconviction evidentiary hearing
Ibar files a Supplemental postconvimotion
ction relief
021312 Order denying postconviction 1482-1529)
relief (PCR9
On August 24 1994 and then by way of a corrected indictment
dated September 29 1994 Defendant Pablo Ibar (Ibar) and
his co-defendant Seth Penalver (Penalver)1 were indicted for
the first-degree murders of Casmir Sucharski Sharon Anderson
and Marie Rogers along with the related counts of burglary
robbery and attempted robbery (ROA-R1 2-7) Initially the
co-defendants were tried together however following a hung
jury then a mistrial during the voir dire of the second trial
the co-defendants cases were severed Ibars third trial
commenced on April 17 2000 and on June 14 2000 the jury
returned a verdict of guilty as charged on each count (ROA-R6
998-1005) Following the penalty phase on July 24 2000 the
jury by a nine to three vote recommended that Ibar be sentenced
to death for the triple homicide (ROA-R 6 10 21-23) The trial
court agreed with the jury and on August 28 2000 upon finding
five aggravators two statutory mitigating factors and nine
1 Penalver was also convicted as charged and sentenced to death On appeal the Florida Supreme Court reversed See Penalver v State 926 So2d 1118 (Fla 2006) Undersigned has been advised that the re-trial ended in an acquittal
3
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
nonstatutory circumstances Ibar was sentenced to death
Subsequently Ibar appealed his conviction and sentence to
the Florida Supreme Court raising eight issues2 This Court
affirmed the convictions and sentences Ibar 938 So2d at 476
and on February 20 2007 the United States Supreme Court denied
certiorari review See Ibar v Florida 549 U S 1208 (2007)
On February 19 2008 pursuant to Florida Rule of Criminal
Procedure 3851 Ibar moved for postconviction relief A three-
day evidentiary hearing commenced on March 16 2009 and on
2 As provided by this Court Ibar asserted the following issues on direct appeal
Ibar raises eight issues in this appeal (1) whether certain out-of-court statements were statements of identification as contemplated by section 90801(2) (c) Florida Statutes (1995) (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup (7) whether the integrity of the trial was af fected by references to certain evidence denying Ibar due process (8) whether the death penalty in this case violates the Florida and Federal Constitutions
Ibar v State 938 So2d 451 459 (Fla 2006)
4
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
February 13 20123 the trial court denied relief (PCR9 1482shy
1529) Ibar appealed and on December 21 2012 he filed his
initial brief in case number SC12-522 and his petition seeking
state habeas relief in the instant case
The Facts of the Crimes
On direct appeal this Court found
On August 25 1994 Pablo Ibar and Seth Penalver were charged with three counts of first-degree murder one count of burglary one count of robbery and one count of attempted robbery FN1 Penalver and Ibar were initially tried together The first jury trial ended with a hung jury Ibar and Penalver were eventually tried separately Both Ibar and Penalver were ultimately convicted and sentenced to death
FN1 See Penalver v State 926 So2d 1118 (Fla 2006)
On Sunday June 26 1994 a Palm Beach County police officer discovered a Mercedes SL convertible on fire on a road twelve miles south of South Bay The car was registered to Casmir Sucharski FN2 owner of a nightclub called Caseys Nickelodeon The officer who discovered the car notified the Miramar Police Department A Miramar police officer went to Sucharskis home to tell him that his car had been found The officer knocked on the door and received no answer He stuck his card in the door and left
FN2 Casmir Sucharski was also known as Butch Casey
The next morning Monday June 27 1994 Marie Rogers mother reported her missing to the Broward County Sheriffs Department Rogers had gone to Caseys Nickelodeon on Saturday June 25 1994 with her
The delay was due in part to DNA and other forensic testing the trial court permitted following the close of the hearing
5
3
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
friend Sharon Anderson and did not return home Deputy Christopher Schaub went to Caseys Nickelodeon and learned that Sucharski left the club early Sunday morning with Rogers and Anderson Schaub then went to Sucharski s res idence Anderson s car was in the driveway but no one answered the door Schaub found a Miramar Police Department business card in the door and a blue T-shirt on the porch He peered inside and saw three bodies
The police identified the individuals found in the residence as Sucharski Rogers458 and Anderson All three died of gunshot wounds Because Sucharski had recently installed a video surveillance camera in his home there was a videotape of the actual murders The tape revealed that on Sunday June 26 1994 at 718 am two men entered through the back sliding door of Sucharskis home The intruder alleged to be Ibar initially had something covering his face but he eventually removed it The other intruder alleged to be Seth Penalver wore a cap and sunglasses which were never removed and carried a firearm The videotape showed that one of the intruders had a Tec-9 semiautomatic handgun with him when he entered the home The other intruder displayed a handgun only after he went into another room and left the cameras view At one point the intruder alleged to be Penalver hit Sucharski with a Tec-9 in the face knocked him to the floor and beat him on the neck face and body This attack on Sucharski lasted for nearly twenty-two minutes The man later identified as Ibar shot Sucharski Rogers and Anderson in the back of the head The intruder alleged to be Penalver then shot Anderson and Sucharski in the back
During this time the intruders searched Sucharskis home They rummaged through the home and entered the bedrooms and the garage Sucharski was searched and his boots removed Sucharski struggled and was repeatedly hit by both intruders The intruders were seen putting things in their pockets The State presented evidence that Sucharski kept ten to twenty thousand dollars in cash carried a gun and owned a Cartier watch The watch was not found and Sucharskis gun holster was empty
Police took frames from the videotape and produced a flyer that was sent to law enforcement agencies Three
6
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
weeks after the murders the Miramar police received a call from the Metro-Dade Police Department informing them that they had a man in custody on a separate and unrelated charge who resembled the photo on the flyer The man in custody at the Metro-Dade Police Department was Pablo Ibar Ibar was interviewed by Miramar investigators He told police he lived with his mother and that on the night of the murders he had been out with his girlfriend whom he called both Latasha and Natasha
Ibar actually lived with several friends in a rented home on Lee Street in Hollywood Florida One of his roommates was Jean Klimeczko Klimeczko initially identified Ibar and Penalver as the men on the videotape Klimeczko told police that early on the morning of the murders Ibar and Penalver rushed into the Lee Street home grabbed a Tec-9 that was kept at the house and left At the second trial however Klimeczko had no memory of his earlier statements Other witnesses who had given earlier statements to police that the men in the photo looked like Ibar and Penalver also denied making identifications
Ibar 938 So2d at 457-58 On June 14 2000 the jury found
Pablo Ibar guilty as charged (ROA-R6 1000-05)
The Jury Penalty Phase
In the penalty phase the State presented victim impact
testimony from family members of Sharon Anderson and Marie
Edwards (ROA-T59 7310-29) The defense called Ibars family
and friends to discuss his character and lack of prior criminal
history The jury recommended death for the murders by a vote
of none to three (EOA-R6 1021-23)
Spencer Hearing
A Spencer hearing was held on August 14 2000
Sentencing and Attendant Trial Court Findings
7
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
In sentencing Ibar to death for the triple homicide the
trial found aggravation of (1) prior violent felony (2) felony
murder (3) avoid arrest (4) heinous atrocious or cruel and
(5) cold calculated and premeditated (this factor was not
given to the jury) (ROA-R 6 1096-1100) In mitigation the
trial court found (1) no significant prior criminal history
(medium weight ) (2) age (minimum weight ) (3 ) good loving
family relationship (medium weight) (4) good worker (minimal
weight) (5) rehabilitationno danger to others in prison (very
little weight) (6) good friend to brother and friend (minimal
weight (7) good courtroom behavior (minimal weight) (8)
Defendant is religious (minimal weight) (9) familyfriends care
for Defendant (minimal weight) (10) good family (minimal
weight) (11) remorse (minimum weight) The trial court
rejected the mitigators of (1) defendants participation was
minor (2) good jail record (3) lack of father growing up (4)
entered victims home without intent to kill (5) defendant did
not flee after offense committed (6) bad peer influence (7) no
time for cool consideration before killing (8) under influence
of alcohol at time of crimes (9) Defendant is not violent
person (10) Defendant is intelligent (proven but not
mitigating) (10 ) res idual doubt (not mitigating factor) (11)
extraneous emotional factors (12) death penalty is not
deterrent (13) familys request for life sentence (14) cost
8
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
less for life sentence (15) innocent people have been sentenced
to death (ROA-R6 1104-14)
Postconviction proceedings
In his postconviction motion (PCR1 117-93) Ibar raised
claims addressed to guilt phase counsels effectiveness4 a Brady
v Maryland 373 US 83 87 (1963) violation the failure of
the state to maintain surveillance video equipment from crime
scene and that denial of due process based on an alleged lack
4 Ibars nine sub-claims challenging guilt phase counsels effectiveness were that counsel failed to (A) present an expert in facial identification to opine that Ibar could not be positively identified on the murder videotape (B) present a witness to say the perpetrator identified as Ibar was shorter than Ibar (C) present an expert to testify about the reliability of eye-witness testimony (D) to investigate amp counter the States rebuttal case challenging Ibars alibi witnesses and their account of where they purchased telephone calling cards in Ireland (E) obtain a private investigator to testify about (1) eye-witness Gary Foys obstructed line of sight when observing Ibar leaving the crime scene in Victim Sucharskis Mercedes Benz (2) that the Tec-9 gun Ibar allegedly sold before the murder was not the murder weapon and (3) Natasha the girl with whom Ibar claimed to have spent the Sunday night following the murders (F) secure identification expert Iscan to report that the second person visible on the murder videotape was not Penalver (G) show the Tec-9 gun recovered in this case was not the murder weapon (H) object to (1) the State calling Mimi Quinones solely for impeachment purposes (2) the State calling Maria Casas Marlene Vindel Roxana Peguera solely for impeachment purposes and (3) the States alleged late disclosure of rebuttal witness George McEvoy as a discovery violation under Richardson v State 246 So2d 771 (Fla 1971)and (4) Gary Foys testimony on the grounds the photographic and live lineups were unduly suggestive and (I) seek instructions limiting the jurors consideration of the identification witnesses testimony as impeachment only
9
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
of time to review photographs obtained in public records
litigation On December 12 2011 a supplemental motion was
filed raising a Ring v Arizona 536 US 585 (2002) claim but
it was withdrawn later with the concession that the matter was
procedurally barred (PCR8 1339-1448 PCR9 1475-81 1509)
Ibar also supplemented his motion with a claim that guilt phase
counsel was ineffective in not requesting an instruction for the
jury to critically and cautiously evaluate eyewitness
identification testimony An evidentiary hearing was granted on
the claims of ineffective assistance of guilt phase counsel for
failing to (A) present an expert in facial identification to
opine that Ibar could not be positively identified on the murder
videotape and (F) secure identification expert Dr Iscan to
report that the second person visible on the murder videotape
was not Penalver
In March 2009 a postconviction evidentiary hearing was held
and on February 13 2012 the trial court rendered its order
denying postconviction relief Ibar appeals and filed his
postconviction appeal brief simultaneously with the instant
state habeas corpus petition The States response to the
petition follows
10
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
ARGUMENT
CLAIM I IBARS CHALLENGE TO THE HARMLESS ERROR
ANALYSIS THIS COURT CONDUCTED ON DIRECT APPEAL IS PROCEDURALLY BARRED (P 7-22 RESTATED)
Overview - Ibar asserts that the harmless error analysis this
Court conducted on direct appeal was constitutionally inadequate
and flawed factually The State contends that the instant
matter is procedurally barred as a state habeas petition may not
be used as a second appeal However should this Court review
the matter it will find that the harmless error analysis
conducted on direct appeal was constitutional and that Ibar has
not shown that manifest injustice will occur should this Court
deny relief Even if this Court reaches the merits the
harmless error analysis was constitutionally proper and
supported by the record
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P or rule 3 851 Fla R Crim P Ha rdwi ck
v Dugger 648 So2d 100 105 (Fla 1994) (quoting Parker v
Dugger 550 So 2d 459 460 (Fla 1989) ) See Wya t t v Sta te 71
So3d 86 112 n20 (Fla 2011) (rejecting habeas claim that the
Court failed to conduct a constitutionally adequate harmless-
error analysis on direct appeal because habeas corpus
11
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
petitions are not to be used for additional appeals on questions
which could have been should have been or were raised on
appeal or in a rule 3850 motion
B The Florida Supreme Court s Ruling on Direct Appeal On direct appeal this Court determined
Although the trial judge erred in allowing several of the identification statements to be considered as substantive evidence we find the error harmless See State v DiGuilio 491 So2d 1129 (Fla 1986) In DiGuilio we explained that the State as the beneficiary of any error must demonstrate beyond a reasonable doubt that the complained-of errors did not contribute to the verdict That is to say the State must prove that there is no reasonable possibility that the error contributed to the conviction Id at 1135 (citing Chapman v California 386 US 18 87 SCt 824 17 LEd2d 705 (1967))
A close examination of the evidence presented in this case both the properly admitted and the inadmissible evidence demonstrates the harmlessness of the error in this instance In addition to the statements of Peguera Vindel Casas and Klimeczko identifying Ibar which Ibar concedes was proper as impeachment evidence but not substantive evidence there were other witnesses and items of evidence from which the jury could conclude that Ibar was one of the perpetrators of this triple homicide First there was a videotape of the murders The perpetrator identified as Ibar removed his disguise and his face was visible on the videotape This videotape was played for the jury Gary Foy one of Sucharskis neighbors testified that he saw two men leaving in Sucharskis Mercedes-Benz He stated that he did not get a good look at the driver of the car but he got a good look at the passenger Foy identified Ibar as the passenger in the Mercedes Klimeczko testified that at some point both Penalver and Ibar came to the residence on Lee Street in a big black shiny new car Although Milman denied that he had ever positively identified Ibar as the person in the still photograph made from the videotape he did say that the person in the photograph resembled Ibar Moreover the trial judge admitted as substantive evidence Milmans grand jury
12
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
testimony in which he positively identified Ibar Munroes statement placing Ibar and Penalver together during the weekend of the murder was also admitted as substantive evidence On the issue of identification the jury also heard evidence from Kimberly San and David Phillips that placed Ibar and Penalver in the Mercedes Both Peguera and her mother testified that the person in the photograph resembled Ibar We conclude that any error in admitting some of these identification statements as substantive evidence rather than as impeachment evidence was harmless error DiGuilio 491 So2d at 1135
Ibar 938 So2d at 463
Ibar moved for rehearing challenging this Courts harmless
error analysis On September 7 2006 rehearing was denied
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to the harmless error analysis
conducted on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
As noted above after this Court determined on direct appeal
that the trial judge erred in allowing several of the
identification statements to be considered as substantive
evidence Ibar 938 So2d at 463 it employed a harmless error
analysis provided in State v DiGuilio 491 So2d 1129 (Fla
1986) That analysis was also the subject of a motion for
rehearing in which Ibar asserted that this Courts
13
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
determination of harmlessness wholly omitted consideration of
monumental factual matters which appear in the record Ibar
maintained this Court erred by failing to consider andor
discuss in its harmless error analysis (1) the lack of any
forensic evidence (fingerprints blood hair or DNA) linking
Ibar to the crime scene (2) fact jury heard Ibars mother
identify her son along with others who knew Ibar as the one of
the men on the video (3) this Courts alleged misconstruing the
testimony of Roxana Peguera Maria Casas Jean Klimeczko Ian
Milman and Melissa Monroe regarding what they reviewed in order
to make an identification where an identification was made or
the strength of their identification (4) this Courts failure
to observe that the video of the murders was grainy fuzzy
gray shady blurry and distorted or that a prior jury could
not reach a verdict when Ibar and Penalver were tried together
and the video was played (5) the opinion on direct appeal did
not discount Foys identification testimony (6) the direct
appeal opinion does not discuss other evidence suggesting that
individuals who knew the victim Casey Sucharski may have been
involved in the homicides (7) Ibar did not confess (8) the
opinion did not discuss alleged impeachment of Kimberly Sans
David Philips and Jean Klimeczko and (9) Ibar did not attend
the proceedings where Ian Milman (grand jury) and Melissa Monroe
(Penalver s bond hearing) gave the sworn testimony used as
14
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
substantive evidence in Ibars trial (ROA-T9 2523-26 ROA-T17
2249-2322 ROA-T18 2343-2047 ROA-T21 2810-2989 ROA-T22
3022 3067-70 ROA-T23 3173-83 ROA-T25 23487 ROA-T30 4096shy
4104 ROA-T32 4235-39 ROA-T33 4383-4418 ROA-T34 4437-39
ROA-T37 4763-95 ROA-T52 6889 6891 Motion of Rehearing at 2shy
8)s This Court rejected those contentions
Now Ibar seeks a third review of the harmless error analysis
conducted on direct appeal asserting the same challenges raised
and rejected on rehearing (Motion for Rehearing case number
SC00-2043 P at 13-18) It is well settled that habeas petitions
may not be used for a second review of issues which were raised
on direct appeal See Wyatt 71 So3d at 112 n20 Taylor 3
So3d at 1000 Hardwick 648 So2d at 105 Parker 550 So2d at
460 This Court should find the matter barred and deny relief
D Ibar Has Not Shown Manifest Injustice to Overcome the Procedural Bar
Ibar asserts he has shown manifest injustice to allow for yet
another review of this Courts harmless error analysis because
the prior analysis was erroneous (P at 22) He points to State
v Akins 69 So3d 261 (Fla 2011) Muehlman v State 3 So3d
1149 (Fla 2009) and Strazulla v Hendrick 177 So2d 1 (Fla
1965) for support of his position that this Court could
s The record cites are those provided by Ibar in his Motion for Rehearing on direct appeal
15
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
reconsider its harmless error decision announced on direct
appeal However this is not a case where manifest injustice
has been shown to overcome the law of the case Instead Ibar
seeks nothing more than a second appeal
On appeal the State pointed this Court to the trial record
where Roxanne Peguera testified that she was shown a photograph
on July 14 1994 (States Trial Exhibit 139) that she did not
remember what the officer said but she recalled telling the
officer that that looks like Pablo (ROA-T22 3056) She
admitted the officer may have asked her do you know this
person or does this look like Pablo but she did not know
(ROA-T22 3059) Subsequently on September 1 1994 a recorded
statement was taken from her and she was shown the picture again
(ROA-T22 3062-64) At that time the police asked her do you
recognize the person in that picture and she answered um
yes He looks like Pablo But I really havent seen him in a
long time so I really dont know (ROA-T22 3069-70) Officer
Ibar also points to Parker v State 873 So2d 270 278 (Fla 2004) and Holland v Florida 130 SCt 2549 (2010) for
support Parker is not applicable here as it was determined there had not been a prior ruling on the matter he was asking the courts to consider during his re-sentencing Likewise Holland is not on point as there the Supreme Court determined the extent of its equitable powers to consider a habeas corpus petition under 28 U S C sect2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996 when a state prisoner failed to file his petition within the statute of limitations
16
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Scarlett testified that when he showed Peguera the picture on
July 14 1994 he asked do you know who this is and she
looked at it and said it was Pablo (ROA-T25 3402)
Peguera did not deny making the identification of Ibar The
only difference between her testimony and Detective Scarletts
is the strengthdegree of the identification Peguera remembered
saying it looked like Pablo while Detective Scarlett
testified she positively identified it as Pablo The same is
true for her mother Marlene Vindel Vindel testified that she
was shown a very cloudy photograph on July 14 1994 and asked
if she knew the person (ROA-T23 3172) She responded that he
looked like Pablo but she was not really sure because it was
not very clear (T ROA-23 3173) Detective Scarlett testified he
showed Vindel the photograph and asked do you know who this
is and she responded Pablo (ROA-T25 3401) Maria Casas
Ibars mother passed away before the 2000 trial however her
testimony from the first trial was read into the record The
jury heard Casas deny making any identification of Ibar (ROAshy
T24 3333-40) Detective Scarlett however testified that on
July 14 1994 he had showed Casas the photograph and asked do
you recognize this picture with her responding yes its
Pablo (ROA- T 25 3399)
Ian Milman testified the photograph resembled Ibar but
denied saying it was Ibar or making an identification before the
17
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
grand jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20)
However Milman was impeached with the identification he made
before the grand jury Also Officer Manzella testified that
when he showed Milman the photo and asked do you know who this
is Milman responded thats Pablo (ROA-T39 5236) Jean
Klimeczko admitted he previously identified Pablo from a
photograph he was shown but recalled it was very clear not the
fuzzy one shown in court Klimeczko believed the picture he
identified was a file picture not the video still the police
claimed he identified Klimeczko was impeached with his
testimony from the Adversary Preliminary Hearing wherein he
identified Ibar Further Officer Manzella testified he showed
Klimeczko the photo twice and both times Klimeczko said thats
Pablo (ROA-T39 5186-87) The last identification witness
Melissa Munroe testified Pablo resembled the man in the
photograph but said she could not make an identification She
was impeached with her August 25 1994 Grand Jury testimony
wherein she testified the pictures looked like Penalver and Ibar
(ROA-T39 5219-20)
From the record this Court reviewed on appeal it is clear
the lay witness testimony as well as the police officers
testimony regarding the out-of-court identifications was not the
only or even the most compelling evidence that Ibar committed
the murders It is most important to remember that the murders
18
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
were captured on videotape and thus unlike the vast majority
of crimes the jury had the opportunity to view the crime as it
was committed and determine for itself whether Ibar the person
it viewed daily during the six-week trial was one of the
assailants Additionally the jury was made aware of the
quality of the videotape the defense highlighted the
shortcomings of the video and this Court considered the tape in
its review All of that was implicit when this Court discussed
the tape in Penalver v State 926 So2d 1118 (2006) and when it
noted in Ibars case that the jury could see Ibars face on the
tape Clearly this Court viewed the videotape in order to make
that finding while cognizant of the quality of the tape when it
conducted its harmless error analysis
Also this Court considered the testimony of eyewitness Gary
Foy and his identification of Ibar (from out-of-court photo and
live lineups and in-court identification) as one of the men he
saw leaving Sucharskis house on the morning of the murders in
Sucharskis black Mercedes Kim Sans and David Phillips also
reported seeing Ibar in possession of a black Mercedes on the
morning of the murder Finally the officers testimony merely
corroborated the testimony of Vindel Perguera Klimeczko
Milman and Monroe Both Vindel and Perguera admitted in-court
that they identified the person in the photograph as Ibar but
varied from the officers in the strength of their
19
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
identification Also Klimeczko Milman and Munroe were each
impeached with prior sworn testimony that they had previously
identified the person in the photo as Ibar
Without citing any authority Ibar asserts the identification
testimony given by Milman Monroe and Klimeczko should have
been discounted because Ibar was not present at those prior
proceedings where sworn testimony was given (P at 18)
However sect90 801 (2) (a) Fla Stat contains no such requirement
that the defendant must be present at the prior proceeding
ie trial hearing or other proceeding or in a deposition
where the sworn testimony regarding identification was g1ven
before it may be used as substantive evidence to counter later
inconsistent testimony Grand jury testimony qualifies a prior
sworn testimony under the statute See State v Green 667 So2d
756 759 (Fla 1995) (noting grand jury testimony regarding
identification admissible as substantive non-hearsay testimony)
Clearly a defendant may not be present for such testimony
Moreover Ibars confrontation rights were preserved as he had
the opportunity at trial to cross-examine these witnesses
regarding their prior sworn testimony regarding identification
Gary Foy (Foy) Sucharskis neighbor reported that he had
seen two young men leaving in Sucharskis Mercedes Benz Foy
averred the men followed him for about two to three miles
During that time he would look at them through his rear and
20
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
side-view mirrors While he did not see the driver well because
he would cover his face or look away Foy got a good look at the
passenger The passenger stared hard and glared at Foy On
July 15 1994 Foy viewed a photo lineup selecting Ibars
photograph along with another individual s but he desired to
see both in live lineups However Foy knew Ibar was the
passenger he saw leaving the crime scene in the Mercedes When
Ibar was presented in the lineup Foy selected him immediately7
The lineup was memorialized in a photograph
Klimeczko testified that in June and July 1994 he stayed with
Ibar Alex Hernandez and Alberto Rincon on Lee Street for a few
weeks before having an argument with Ibar and moving out (ROAshy
7 This Court had before it Foys testimony including the cross-examination where Foy withstood questioning by the defense addressed to the timing of his departure from his home on the morning of the murders the suggestion Foy was too preoccupied with his bowling tournament to perceive the identity of the kids driving the victims car that in fact the person Foy identified as Ibar actually looked like Foys friend Justin and that Foy saw the car s occupants for only moments at a time and from the side and rear It was also discussed during cross-examination that Foy initially had chosen two photographs as the person he saw in the passenger seat of the Mercedes and it was suggested the police contaminated the photograph and live lineup identifications The cross-examination tried to point out how difficult and unlikely it was that Foy got a good enough view of the occupants during their drive while looking through tinted windows into the sun and using his rearside view mirrors to make a good identification However Foy maintained that it was Ibar he saw that morning leaving the crime scene in the victims Mercedes (ROA-T21 2836-45 2847-50 2858-59 2867-81 2885-87 2895 2895-97 2905 2908-19 2924-32 2934-38 ROA-T22 2942shy65 2980-82 2984-89 3018-21)
21
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
T30 4011-14 4018 4034) Also Klimeczko identified Ibar and
Penalver as being depicted in the photographs he was shown by
the police (ROA-T30 4083-87 4103-04 ROA-T31 4109-13 4136-39
4144 4189-91) Klimeczko averred there was a Tec-9 gun in the
Lee Street home (ROA-T31 4154 4158-62) This Court will
recall that a Tec-9 was identified as a gun seen on the
videotape Describing the events at the Lee Street house
between 500 am and daybreak on June 26 1994 Klimeczko
testified Penalver and Ibar entered the home Ibar took the Tecshy
9 left with Penalver driving then returned near daybreak in a
big black shiny new car and stayed a few minutes before
leaving once again in two cars Klimeczko did not see Penalver
and Ibar until noon maybe 100 pm but they no longer had the
black car (ROA-T31 4180-85)
Ian Milman testified the photo resembled Ibar but denied
saying it was Ibar or making an identification before the grand
jury (ROA-T34 4439-55 4492-4500 ROA-T35 4517-20) He was
confronted with the identification he made before the grand
jury Officer Manzella testified that when he showed Milman the
photo Milman responded that s Pablo (T ROA- 39 5236)
Kim Sans testified she saw Penalver and a man who identified
himself as Pablo on the last weekend in June 1994 Near 800
am on June 26 1994 she saw Penalver and Ibar with a black and
tan Mercedes (ROA-T43 5828-32 T44 5920-60 5990-6007)
22
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Based on these record facts this Courts factual findings in
its harmless error review were supported by the record Ibar
has failed to establish any discrepancies which would amount to
manifest injustice Moreover this Court pointed to the proper
law for analyzing harmless error State v DiGuilio 491 So2d
1129 (Fla 1986) It applied the law to the facts of the case
and reconsidered the matter on rehearing Ibar has failed to
establish a basis for the third review requested in this
petition The claim should be found barred and relief denied
CLAIM II IBARS CHALLENGE TO THIS COURTS DECISION ON DIRECT APPEAL REJECTING THE RING V ARIEONA CLAIM IS PROCEDURALLY BARRED (P 23-28 RESTATED)
Overview Ibar asserts this Court failed to consider and grant relief
on his direct appeal challenge to the constitutionality of the
death sentence based on Ring v Arizona 536 US 584 (2002)
He maintains that this Court failed to address his challenge
that the trial courts refusal to allow the jury to consider the
Cold Calculated and Premeditated (CCP) aggravator and the trial
courts subsequent consideration and finding of CCP rendered his
sentence in violation of Ring However this Court resolved the
Ring issue by pointing to cases where Ring was found not to
impact Florida in cases where the prior violent felony
aggravator was found Ibar 938 So2d at 472-73 See Doorbal v
State 837 So2d 940 963 (Fla 2003) (stating prior violent
23
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
felony aggravator based on contemporaneous crimes charged by
indictment and on which defendant was found guilty by unanimous
jury clearly satisfies the mandates of the United States and
Florida Constitutions) Given that the matter was raised and
resolved on direct appeal the issue is barred here Moreover
given the trial courts sentencing findings and this Courts
jurisprudence regarding Ring where the defendant has prior or
contemporaneous convictions the Ring challenge was denied
properly and Ibar has not offered a basis for revisiting the
matter Relief must be denied
A The Standard of Review A habeas corpus petition is not to be used for additional
review of questions which could have been should have been or
were raised on appeal or in a postconviction motion pursuant to
rule 3 850 Fla R Crim P of rule 3 851 Fla R Crim P Hardwi ck
648 So2d at 105
B The Florida Supreme Court s Ruling on Direct Appeal At trial Ibar was convicted of the first degree murders
which the trial court used to establish the prior violent felony
aggravator Additionally Ibar was convicted of robbery and
burglary which were committed during the course of the
homicides The trial court found that the felony murder
aggravator was proven given these convictions (ROA-R6 1096)
The jury was instructed on and the trial court also found the
avoid arrest and heinous atrocious or cruel (HAC)
24
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
aggravators (ROA-R6 1097-1100) Although the CCP aggravator
instruction was not given to the jury the trial court felt
compelled to find this aggravator under the unique factual
situation present in this case (ROA-R6 1100) However the
trial court gave the aggravator minimal weight because the
factor was not given to the jury for consideration (ROAR6
1104) The trial court also provided that it
Finds that the aggravating factors that were proven beyond a reasonable doubt far outweigh the mitigating factors that were established by a preponderance of the evidence This finding that the aggravating factors far outweigh the mitigating factors would not change even if the Court were to exclude the aggravating factors of avoid or preventing lawful arrest and that the capital felony was committed in a cold calculated and premeditated manner
(ROA-T6 1114) (emphasis supplied)
On direct appeal this Court stated Ibar argues that the
Florida system unconstitutionally relies upon judicial fact-
finding and not jury fact-finding This claim and variations of
this claim have been addressed and decided adversely to Ibar
See Duest v State 855 So2d 33 49 (Fla 2003) Blackwelder v
State 851 So2d 650 654 (Fla2003) Ibar 938 So2d at 472shy
73 In Duest this Court recognized that it had rejected Ring
challenges in Bottoson v Moore 833 So2d 693 (Fla 2002) and
King v Moore 831 So2d 143 (Fla 2002) and where there was a
prior violent felony conviction supporting the prior violent
felony aggravator
Recently this Court opined
25
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
We have consistently rejected claims that Floridas death penalty statute is unconstitutional See eg Baker v State 71 So3d 802 823-24 (Fla 2011) cert denied --- US ---- 132 SCt 1639 182 LEd2d 238 (2012) Darling v State 966 So2d 366 387 (Fla 2007) Frances v State 970 So2d 806 822 (Fla 2007) Peterson has not presented any argument that requires us to reconsider this precedent
Peterson v State 94 So3d 514 538 (Fla 2012)
C The Claim Is Barred A petitioner cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim
to argue the merits of claims that either were or should have
been raised below See Taylor v State 3 So3d 986 1000 (Fla
2009) The instant challenge to this Courts rejection of the
Ring claim on direct appeal is barred from review here as a
habeas petition may not be used to gain a second appeal
Ibar suggests that it is not clear from this Courts opinion
whether this Court addressed his claim that his sentence is
unconstitutional under Ring because the trial court found an
aggravator not given to the jury for its consideration (P at
23-27) However this Court noted Ibars claim then resolved it
by recognizing Ring had no impact as Ibar had contemporaneous
violent felony convictions Ibar 938 So2d at 472-73 As such
this Court resolved the claim It is well settled that habeas
petitions may not be used for a second review of issues which
were raised on direct appeal See Wya t t 71 So 3d at 112
n20 Taylor 3 So3d at 1000 Hardwick 648 So2d at 105
26
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Parker 550 So2d at 460 This Court should find the matter
barred and deny relief
D Ibar Has Not Plead Nor Established Manifest Injustice to Overcome the Procedural Bar
Even had this Court not addressed the Ring issue directly
the record establishes that Ibar is not entitled to a second
review of the issue First the trial court stated that his
finding that the aggravation far outweighs the mitigation in the
case would not change even if the Court were to exclude the
aggravating factors of avoiding or preventing lawful arrest and
that the capital felony was committed in a cold calculated and
premeditated manner (ROA-R6 1114) As such even if Ring
applies here there is no defect in sentencing as the sentencing
calculus was not altered by either the avoid arrest or CCP
aggravators See Hurst v State 819 So2d 689 694 (Fla 2002)
(refusing to reach issue of whether court may consider
aggravator not sought by State as issue was unpreserved and
aggravator was stricken on other grounds but affirming sentence
because valid aggravation remained and jury had not heard
invalid aggravator) Second as noted above the prior violent
and felony murder aggravators were established beyond a
reasonable doubt thus Ibars sentence is constitutional even
in light of Ring See Baker v State 71 So3d 802 824 (Fla
2011) (opining we have previously explained that Ring is not
implicated when the trial court has found as an aggravating
27
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
circumstance that the crime was committed in the course of a
felony) Third Ibar has not plead nor can he show manifest
injustice in support of a second review given that Florida
capital sentencing meets constructional muster Peterson 94
So3d at 538 See generally Marshall v Crosby 911 So2d 1129
1134 n5 (Fla 2005) (listing over 50 cases since Rings release
where this Court has rejected similar Ring claims) and the
prior violent and felony murder aggravators apply in this case
Relief must be denied
CLAIM III IBAR HAS FAILED TO ESTABLISH THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSITANCE IN FAILING TO CHALLENGE ON APPEAL THE ADMISSION OF GARY FOY S IDENTIFICATION TESTIMONY AND TO CHALLENGE THE USE OF PRIOR TESTIMONY GIVEN AT A PROCEEDING WHICH IBAR DID
NOT HAVE THE OPPORTUNITY TO ATTEND (P 31-44 RESTATED)
Overview Ibar asserts appellate counsel rendered ineffective
assistance by failing to raise on appeal two claims (1) that
Gary Foys eyewitness identification testimony should have been
excluded as the procedures used at the photo array and live
lineup were unduly suggestive and (2) Ibars right to
confrontation was violated when the trial court permitted the
State to elicit testimony from witnesses regarding their
identification testimony developed at a prior proceeding which
Ibar did not have the opportunity to attend
A The Standard of Review Claims of ineffective assistance of appellate counsel are
presented appropriately in a petition for writ of habeas corpus
28
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
See Freeman v State 761 So2d 1055 1069 (Fla 2000) When
analyzing the merits of the claim of ineffectiveness of
appellate counsel the criteria parallel those for ineffective
assistance of trial counsel outlined in Strickland v
Washington 466 US 668 (1984) See Rutherford v Moore 774
So2d 637 643 (Fla 2000) (explaining standard of review for
claims of ineffective assistance of appellate counsel raised in
a habeas petition mirrors Strickland standard for trial counsel
ineffectiveness)
In Freeman this Court stated
In evaluating an ineffectiveness claim the court must determine
whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result
Pope v Wainwright 496 So2d 798 800 (Fla 1986) See also Haliburton 691 So2d at 470 Hardwick 648 So2d at 104 The defendant has the burden of alleging a specific serious omission or overt act upon which the claim of ineffective assistance of counsel can be based See Knight v State 394 So2d 997 (Fla 1981) In the case of appellate counsel this means the deficiency must concern an issue which is error affecting the outcome not simply harmless error Id at 1001 In addition ineffective assistance of counsel cannot be argued where the issue was not preserved for appeal or where the appellate attorney chose not to argue the issue as a matter of strategy See Medina v Dugger 586 So2d 317 (Fla 1991) Atkins v Dugger 541 So2d 1165 1167 (Fla 1989)
29
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
(Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the ef fect of diluting the impact of the stronger points )
Freeman 761 So2d at 1069 See Schoenwetter v State 46 So3d
535 563 (Fla 2010) As provided in Jones v Moore 794 So 2d
579 583-84 (Fla 2001)
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal this Court evaluates the prejudice or second prong of the Strickland test first In doing so we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner If we conclude that the trial courts ruling was not erroneous then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsels failure to raise that issue If we do conclude that the trial courts evidentiary ruling was erroneous we then consider whether such error is harmful error If that error was harmless the petitioner likewise would not have been prejudiced
Appellate counsel cannot be deemed ineffective for failing to
raise issues that were not properly raised during the trial
court proceedings or that do not present a question of
fundamental error Valle v Moore 837 So2d 905 907-08 (Fla
2002) (citations omitted) If a legal issue would in all
probability have been found to be without merit had counsel
raised the issue on direct appeal the failure of appellate
counsel to raise the meritless issue will not render appellate
counsels performance ineffective Rutherford 774 So2d at 643
30
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
(quoting Williamson v Dugger 651 So2d 84 86 (Fla 1994)
Also habeas corpus is not a vehicle for obtaining a second
appeal of issues which were raised or should have been raised
on direct appeal or which were waived at trial Moreover an
allegation of ineffective counsel will not be permitted to serve
as a means of circumventing the rule that habeas corpus
proceedings do not provide a second or substitute appeal
Blanco v Wainwright 507 So 2d 1377 1384 (Fla 1987) As
noted in Chavez v State 12 So3d 199 213 (Fla 2009)
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
Furthermore appellate counsel cannot be ineffective for
failing to raise a meritless issue Id at 213 see also Kokal
v Dugger 718 So2d 138 142 (Fla 1998)
B Appellate Counsel Rendered Effective Assistance Ibar asserts appellate counsel should have raised on appeal
the issues that (1) Gary Foys identification testimony should
have been excluded as unduly suggestive and (2) that Ibar s
confrontation rights were violated where the trial court
permitted the use of the prior bond andor grand jury testimony
for Klimeczko Milman and Monroe to be used as substantive
evidence These issues will be addressed in turn however the
record establishes that to the extent the issues were preserved
for appeal both are without merit thus appellate counsel may
31
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
not be deemed ineffective
1 Whether the failure to challenge the admission of Gary Foys testimony on grounds the identification procedures were unduly suggestive was ineffective assistance
Ibar asserts appellate counsel deficiently failed to raise on
appeal the claim that Foys identification of Ibar from the
photo and live lineups should have been suppressed on the ground
it was unduly suggestive While the issue was preserved for
appeal8 neither deficiency nor Strickland prejudice have been
proven Habeas relief should be denied
On May 9 1997 during the first joint trial Morgan filed a
Motion in Limine to Exclude Foys Identifications and included
in his motion challenges to the photo and physical lineups
conducted with Foy on grounds of composition and suggestibility
(ROA-T1 143-45) When the matter was heard on June 12 1997
the parties explored with Foy the circumstances surrounding his
witnessing of Ibar and a driver in the victims car shortly
after the murders Foy also was questioned about his police
a In his postconviction motion Ibar asserted trial court was ineffective for not preserving the instant suppression issue for appeal Following the States response that the issue was preserved the trial court denied postconviction relief (PCR9 1501) Ibar appears to disagree with that ruling (P at 34) As a result should this Court find that the suppression issue was not preserved for appeal it follows that appellate counsel was not ineffective See Thompkins v Dugger 549 So2d 1370 (Fla 1989) (finding appellate counsel is not ineffective for failing to raise claims not properly preserved for appeal) cert denied 493 US 1093 (1990)
32
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
interview where he was shown a photo array and the subsequent
live lineup where he selected Ibar immediately (SROA11 4-150)
Foy explained how he had left his home on the morning of the
murders and as he drove by Sucharskis home he saw two young men
get into Sucharski s black Mercedes convertible and start to
follow behind him (SROA11 7-10)
Foy explained he was driving slowly through the residential
area and was followed by the men in Sucharskis car the
Mercedes was approximately three to four feet behind Foys car
(SROA11 11) Foy was able to observe the passenger real
well but the driver hid is face and Foy did not get a good
look at him He observed the passenger several times for
several dif ferent seconds as that passenger stared [Foy] down
a couple of times It was a violent stare a hard stare
Foy made five to seven observations as he drove and as they
waited at stop signs and turns throughout the neighborhood The
men in the Mercedes trailed Foy the entire time in the subshy
division As they left the area the Mercedes was stopped next
to Foy (SROA11 11-13) Foy averred that at the last stop the
passenger stared very hard at me and he was looking at me
really hard turn [ed] around like his shoulders And he
was like glancing at me just staring me down very hard
They were no more than 12 to 15 feet apart (SROA11 14)
It was not until the next day that the police set up a
33
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
roadblock and were questioning people to see if anyone had seen
anything that Foy first came in contact with the police
(SROA11 15) On July 15 1994 the police visited Foy at his
home and showed him two photographic lineups (SROA11 16-17)
The police did not suggest that the suspects were actually in
the photo lineups (SROA11 18-19) Foy explained
A But when I looked at the lineup I knew who it was
Q [Prosecutor] When you looked at Lineup A Tell us what happened when you saw it
A Well at first I was scared I didnt want to say anything
A Because I didnt want to come here I didnt was to testify I didnt want to spend all these days down here I - - - I was scared It was a murder trial I knew there was a murder
A I told them it could be One or Number Five on one picture but I knew who it was right away
A Right But I knew who it was it was Number Five
Q When you said One or Five did the police ask you any additional questions to try to make a determination as to which one you thought it might be the person that you saw
A I think they knew They knew that I knew which one it was They just knew I was scared and nervous and a little upset They said [t]his is important Said [i]f you say its Number One or Number Five does either one look more familiar and if you really know which one it is tell us And thats when I turn
34
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
around and said it was Number Five I knew it was number Five I told them that
Q And Number Five was the person you saw that passenger you were referring to that you saw that morning
A Yes sir
(SROA11 18-20)
On July 24 1994 Foy viewed a live 1ineup which was set up
at his request (SROA11 21-22) Foy selected Number 4 from the
live lineup as the person he saw in the passenger seat of
Sucharskis Mercedes The police never suggested to him who Foy
should choose from the lineup (SROA11 23-24) Foy looked at
the lineup from every angle but the minute Foy saw Ibar he
knew who it was The police never suggested to Foy after he
selected someone from the photo lineup that he had chosen the
right person (SRAO11 24-25)
On cross-examination Foy testified that he did not view the
live lineup seeking the person he saw in the photo array Foy
looked at the individuals [at the live lineup] and saw the
individual that I recalled was there (SROA11 85-86) At the
live lineup Foy was not trying to take a picture that they
showed [him] six days ago so that it would impress upon [his]
mind who would be in there that day That guy looked like the
guy that was in the picture and he looked like the guy that was
in the car resembled (SROA11 87) Foy did not look at his
identification as recognizing Ibar from the photo lineup but as
35
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
the person he saw in the passenger seat of the Mercedes He
testified I wasnt thinking thats the guy that I saw in the
picture What came to my mind when I saw him was thats the
guy in the car Foy disagreed with defense counsels
suggestion that he selected Ibar based on the photo array
Instead Foy clarified When I saw the lineup I was looking
for a guy staring me down Thats what I had in my mind not
the mug shot - - Excuse me photographs The guy in the car
Thats what Im trying to say (SROA11 88-89)
When the issue was raised during the 2000 trial the court
reasoned
I got to be convinced by clear and convincing evidence that the identification in this case was made from the time [Foy] saw allegedly your client in this Mercedes as the passenger or was it done from the picture photo pack lineup ie picture number 1 - - picture number 5 Or was it done from the number 4 person in the live lineup And there is no question in my mind you know if I were to suppress it there is no question in my mind that this guy was making his in-court identification at the time of the motion to suppress from what he saw in the car
I mean this guy you know it just wasnt you cross examination - - you wanted to get him to seconds But it wasnt the one time that he saw your client He saw them when he was backing out saw them at the stop sign looking out the side view mirror
What he pointed out to your client was the stare he gave him He just keeps going over that stare and thats you know thats what leaves in my mind as to why he made this identification
Okay Even even if I were to suppress this I would
36
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
still allow in the in-court identification I mean even if you throw out the lineup And this is the point I was making I would allow the in-court identification because I am convinced in my mind this guy made his identification based upon what he saw of your client as the alleged passenger in the Mercedes okay
(ROA-R11 1482middot-85) When trial counsel argued Foys photo
lineup identification should be suppressed given how Foy
immediately rejected four of the men and was never shown the men
from different angles as Foy had requested the court concluded
that Foy s testimony was that he knew the person he saw was
photograph number five but that he had concerns about getting
involved (ROA-R11 1498-1500)
The standard of review applicable to a trial courts ruling
on a motion to suppress is that a presumption of correctness
applies to a trial courts determination of historical facts
but a de novo standard of review applies to legal issues and
mixed questions of law and fact that ultimately determine
constitutional issues See Smithers v State 826 So2d 916
924-25 (Fla 2002) citing Connor v State 803 So2d 598 608
(Fla 2001) As provided by this Court in Rimmer v State 825
So2d 304 316 (Fla 2002)
The test for suppression of an out-of-court identification is two-fold (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification and (2) if so considering all the circumstances whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification See Thomas v State 748 So2d 970 981 (Fla 1999) Green
37
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
v State 641 So2d 391 394 (Fla 1994) Grant v State 390 So2d 341 343 (Fla 1980) The factors to be considered in evaluating the likelihood of misidentification include
[T]he opportunity of the witness to view the criminal at the time of the crime the witness degree of attention the accuracy of the witness prior description of the criminal the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation
Grant 390 So2d at 343 (quoting Neil v Biggers 409 US 188 199-200 93 SCt 375 34 LEd2d 401 (1972)) If the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive however the court need not consider the second part of the test See Thomas 748 So2d at 981 Green 641 So2d at 394 Grant 390 So2d at 344
Rimmer 825 So2d at 316
Foy explained that the police procedures used for the photo
array and live lineup were not the basis for his identification
of Ibar he made the identification based on what he recalled
while viewing Ibar during the drive shortly after the murders
(SROA11 7-25 85-89) Such undercuts any allegation that the
police procedures were unduly suggestive Furthermore the
essence of the trial courts finding when the matter was raised
before the 2000 trial was that Foy was making his identification
based on what he saw the day of the murders not from the
lineups (ROA-R11 1482-85 1499-1500) Given that finding
again it cannot be said that the police procedures were unduly
suggestive See Rimmer 825 So2d at 317-18 (finding police
38
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
procedure not unduly suggestive even where defendant was the
only common denominator in the photo and live lineups the
detective told the second witness a suspect was in the live
lineup and that the another witness had identified the defendant
already) As a result had the issue been raised on appeal it
would have been found meritless Appellate counsel may not be
found ineffective for failing to raise a meritless claim See
Suarez v Dugger 527 So2d 190 193 (Fla 1988) (stating [t]he
failure of appellate counsel to brief an issue which is without
merit is not deficient performance) Martin v Wainwright
497 So2d 872 874 (Fla 1986)
The trial court also determined that even if the lineups were
suppressed the in court identification remained valid (ROAshy
R11 1482-85) As such assuming arguendo that the circumstances
were unnecessarily suggestive there is no basis for an
appellate claim here as the identification could be introduced
properly It was reliable apart from the allegedly tainted
procedure and there was no substantial likelihood of irreparable
misidentification See Gorby v State 630 So2d 544 546 (Fla
1993) Edwards v State 538 So2d 440 442 (Fla 1989) Macias
v State 673 So2d 176 181 (Fla 4th DCA 1996)
Ibars reliance on State v Sepulvado 362 So2d 324 327
(Fla 2d 1978) does not further his claim There the appellate
court found the trial court must have considered the extreme
39
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
short glimpse the victim had of his assailants when it
suppressed the identification thus no abuse of discretion was
found In Ibars case the trial court considered the length of
time Foy viewed Ibar but found against Ibars suggestion that
it was mere seconds Instead the trial court noted that it was
not just seconds but it was several times during the drive
through the neighborhood (ROA-R11 1482-85) Had this Court
reviewed the matter on appeal it would have determined that the
trial court did not abuse its discretion in crediting Foys
testimony that he was recalling seeing the passenger in the car
during the drive not the photo and live lineup viewings for his
identification of Ibar middot The suppression issue would have been
rejected on appeal
Also the trial courts finding that Foy was making his
identification based on what he saw on the day of the murders
not the lineups and that the in court identification was based
on what Foy recalled of Ibar as he was riding in Sucharskis
Mercedes along with the courts rejection of Ibars suggestion
that Foy had limited time to view Ibar that day are further
support for the denial of relief here Clearly Foys testimony
regarding his identification of Ibar would be before the jury in
some form irrespective of his identifications at the two
lineups and the jury would be left with the fact Foy identified
Ibar as the man he saw in the passenger seat of the Victims
40
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
Mercedes moments after the triple homicide and for use had a
harmless error analysis be employed Hence the in court
identification which has not been challenged here remains
valid evidence supporting Ibars conviction and lends further
support for a finding that the result of the appeal would not
have been different had counsel raised the issue on appeal
Without question Ibar is unable to prove prejudice under a
Strickland analysis and relief must be denied
2 Whether the failure to raise a Sixth Amendment Confrontation Clause violation for the admission of the bond hearing andor grand jury testimony of Klimeczko Milman and Munroe as substantive was ineffective assistance
Ibar asserts trial counsel Kayo Morgan (Morgan) objected
to the use of the bond andor grand jury testimony of Klimeczko
Milman and Munroe as substantive evidence in violation of the
Confrontation Clause of the Sixth Amendment as bull he was not
present at those hearings to confront those witnesses Pointing
to Crawford v Washington 541 US 36 (2004) and Petit v
State 92 So3d 906 (Fla 4th DCA 2012) Ibar asserts appellate
counsel should have raised a violation of the Confrontation
Clause issue on direct appeal While a broad reading of Ibars
challenges to the testimony of Klimeczko may be read as an
objection to their prior sworn testimony the same objection was
not raised with respect to Munroe The objections raised with
respect to Munroe address the manner in which the prosecutor
questioned the witness and whether her answered even allowed for
41
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
impeachment i e that the que s tions were improper impeachment
(ROA-T 36 4627-29 4640 4662 4706) Alternately Morgan
argued the prior testimony could not be used as substantive
evidence because the jury was unable to assess the witness
credibility at the prior proceeding because the jurors did not
see that testimony live (ROA-T 36 4636 4650) Those are
different issues that are raised here It is well established
that for an issue to be preserved for appeal it must be
presented to the lower court and the specific legal argument or
ground to be argued on appeal must be part of that presentation
if it is to be considered preserved Archer v State 613 So2d
446 (Fla 1993) See Steinhorst v State 412 So2d 332 338
(Fla 1982) Because the matter was not preserved for appeal
counsel did not render ineffective assistance See Patton v
State 878 So2d 368 379 (Fla 2004) (finding [i]n the absence
of fundamental error appellate counsel cannot be deemed
ineffective for failing to raise [an] unpreserved issue)
With respect to Klimeczko counsel Morgan without
referencing the Sixth Amendment right directly objected to the
use of prior testimony as impeachment where the witness is
merely claiming he does not recall the prior testimony Morgan
labels such testimony as non testimony and notes Ibar was not
present for that prior testimony thus it may not be used
against him and the State is stuck with the witness as they
42
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
f ind him on the planet (ROA- T 30 3997 -98 ) Ibar s counsel
also argued with respect to Klimeczkos prior statements
He says he has no independent recollection and cant tell you if it was true or not
Also had the confrontation problem here at the time the prior statement in question was made The defendant was not there to confront in his own interest those prior statements And impeachment youre talking about bringing in extrinsic evidence of a statement that if a person has given affirmative testimony and the prior extrinsic evidence of a statement contradicting it can be presented if he doesnt have a memory of it but there is something to impeach is not non-testimony
The principles that you are referring to in that professors book refer to the inconsistent statement existing as to which extrinsic evidence of a contrary statement can be introduced They have to do that through a court reporter etcetera They just dont get to bring a piece of paper in that is self-authenticating The defendant was hardly a party to it in this case
(ROA-R30 4003)
Morgan continued to push for extrinsic evidence before the
State may impeach Klimeczko and again argued there was nothing
to impeach where the witness cannot remember the prior
statement (See ROA-R30 4046-47 4051 4076) Morgan asked for
a continuing objection to the procedure employed by the State in
questioning Klimeczko regarding his prior statementstestimony
(ROA-R30 4064 ROA-R31 4186) With respect to the use of bond
hearing testimony Morgan noted [a]ll of the issues as to Pablo
were not cross-examined he was not party to that (ROA-R32
4203) In response to the courts reliance on sect90801(2) (a)
43
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
bull
Fla Stat and that requirement the prior statement had to be
given under oath and subject to cross-examination Morgan
asserted [b]y a party with similar interests (ROA-R32 4208)
Later Morgan informed the court that the defense had no control
over or participation in the bond hearing and didn t get a
chance to confront that witness in our way (ROAR32 4240)
Turning to Milman s testimony Morgan responded to the
courts reliance on sect90801(2)(a) to allow the State to utilize
the grand jury testimony by offering He (Milman) has a memory
loss He is testifying differently that is all he is doing
There was no confrontation there Pablo was not represented
Whatever reason motivated him to take that position uncontested
position is one thing You can impeach him with that [Y]ou
cant surplant (sic) an individual witness testimony (ROAshy
R 34 4445-46)
Morgans objections to Klimeczko and Milman were not exactly
the objection Ibar claims should have been raised on appeal
Steinhorst Delhall v State 95 So3d 134 (Fla 2012)
(rejecting Crawford claim where defendant failed to assert an
express Confrontation Clause objection to admission of the
evidence) However to the extent this Court deems the
objections made below raised Confrontation Clause claims the
issue is meritless as the three witnesses challenged here
testified at trial and Ibar was able to confront those witness
44
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
with their prior sworn inconsistent sworn testimony from the
bond hearing andor grand jury Such testimony was admissible
as substantive evidence under sect90801(2) (a) and did not violate
Ibars right to confront the witnesses against him Appellate
counsels failure to raise the issue was not ineffective under
Strickland
Ibar points to Crawford and Davis v Alaska 415 US 308
(1974) to highlight a defendants right to confront the
witnesses against him He points to Petit v State 92 So3d
906 (Fla 4th DCA 2012) to suggest he was prejudiced when
appellate counsel failed to raise the issue on appeal In
Petit the district court found the testimony of a witness at a
bond hearing fell within the ambit of Crawford but determined
there was no error in using that testimony where the defendant
had cross-examined the witness at the bond hearing Crawford
and Petit do not support Ibars position here that prior bond
hearinggrand jury testimony may not be used as substantive
evidence unless the defendant had an opportunity to cross-
examine the witness at the prior hearing It then follows that
appellate counsel may not be deemed ineffective for not raising
such claim
In State v Belvin 986 So2d 516 (Fla 2008) this Court
summarized the Cra wford holding as
[I]n Crawford the Supreme Court held the admission of a hearsay statement made by a declarant
45
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial (2) the declarant is unavailable and (3) the defendant lacked a prior opportunity for cross-examination of the declarant The Court emphasized that if testimonial evidence is at issue the Sixth Amendment demands what the common law required unavailability and a prior opportunity for cross-examination Crawford 541 U S at 68 124 S Ct 1354 Only [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause Davis v Washington 547 US 813 821 126 SCt 2266 165 LEd2d 224 (2006) It is the testimonial character of the statement that separates it from other hearsay that while subject to traditional limitations upon hearsay evidence is not subject to the Confrontation Clause Id
Id at 520 In Petit victimwitness Edder Joseph testified
at Petits bond hearing however Joseph refused to testify at
trial Petit 92 So3d at 909 The reading of Josephs bond
hearing testimony was proper as he was unavailable for
Confrontation Clause purposes and Joseph had the opportunity to
cross-examine him at the bond hearing Id at 910-11 Such is a
different matter than is presented here
At trial Klimeczko Milman and Munroe each testified and
their prior testimony from the bond hearing andor grand jury
was admitted as substantive evidence under sect90801(2) (a) (A
statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement and the statement is (a) Inconsistent with the
declarants testimony and was given under oath subject to the
penalty of perjury at a trial hearing or other proceeding or
46
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
in a deposition) These witnesses testified at trial were
subject to cross-examination about the prior sworn bond
hearinggrand jury testimony given under penalty of perjury and
which was inconsistent from their trial testimony Ibar
Confrontation Clause rights were observed Neither Crawford nor
Petit are implicated here
Moreover in Moore v State 452 So2d 559 (Fla 1984) this
Court addressed the Confrontation Clause issue finding
We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence Section 90801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination
Id at 562
As provided in Charles W Ehrhardt Florida Evidence sect8017
at 824-25 (2012 ed) sect90801(2) (a)
which is the same as Federal Rule 801(d) (1) (A) recognizes that since the declarant is in court and may be cross-examined with regard to the prior statement the danger of the unreliable hearsay testimony is minimized The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement Under section 90801(2) prior inconsistent statements are admissible only when these requirements are met The requirement of a formal proceeding and an oath provides additional assurances of reliability Therefore the reasons for the exclusion of hearsay evidence are absent Furthermore if a prior statement is admissible only to impeach when the jury does not believe the declarants explanation that he did not make the prior statement and they find it to be true it is
47
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
unreasonable to expect them to limit the use of the statement only to assessing credibility If the jurors find that in fact the prior statement was made and was true it is difficult if not impossible for them not to consider it Section 90801(2) recognizes this problem and provides that the prior inconsistent statement is admissible as substantive evidence
(footnotes omitted) There is no requirement under section
90801(2) (a) that the defendant have notice that the prior
statement was made or that the defendant have an opportunity to
cross-examine the witness at the time the prior statement was
made See Charles W Ehrhardt Florida Evidence sect8017 at 825shy
26 (2012 ed) Grand jury testimony qualifies under this
provision as non-hearsay See State v Green 667 So2d 756 759
(Fla 1995) Moore 452 So2d at 561 United States v Distler
671 F2d 954 (6th Cir 1981) Clearly a defendant does not
have the right to participate and cross-examine grand jury
witnesses thus for these same reasons bond hearing testimony
would be admissible substantive evidence where the defendant did
not participate in that hearing so long as the other criteria of
90801(2) (a) are met
Additionally the United States Supreme Court upheld a
California statute which deemed all prior inconsistent
statements of a declarant to be substantive evidence finding it
did not violate the Confrontation Clause The Court noted
Viewed historically then there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarants out-of-court statements as long as the declarant is testifying as a witness and
48
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
subject to full and effective cross-examination It is of course true that the out-of-court statement may have been made under circumstances subject to none of these protections But if the declarant is present and testifying at trial the out-of-court statement for all practical purposes regains most of the lost protections If the witness admits the prior statement is his or if there is other evidence to show the statement is his the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness Thus as far as the oath is concerned the witness must now affirm deny or qualify the truth of the prior statement under the penalty of perjury indeed the very fact that the prior statement was not given under a similar circumstance may become the witness explanation for its inaccuracy-an explanation a jury may be expected to understand and take into account in deciding which if either of the statements represents the truth 399 US at 158 90 SCt at 1935 26 LEd2d at 497
Crawford has done nothing to call into question California v
Green The prior testimony was admitted properly
Moreover even without the testimony from the bond hearing
and grand jury the following testimony remained (1) the
videotape of the murders where Ibars face was visible (2) Gary
Foy s testimony that he saw Ibar and another person leaving in
Sucharskis Mercedes just after the murders (3) Klimeczko
9 See NtildeOOgraveriGUeZ Ogravee QUijaS V ShearSOnAmerican Express 490 US 477 484 109 SCt 1917 104 LEd2d 526 (1989)
(announcing [i]f a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the [other courts] should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions)
49
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
testified that Penalver and Ibar came to the residence big
black shiny new car (4) Milman stated that the person in the
photograph resembled Ibar (5) Kimberly San and David Phillips
that placed Ibar and Penalver in the Mercedes (6) Peguera and
her mother testified that the person in the photograph resembled
Ibar Based on the foregoing law Ibar has failed to carry his
burden under Strickland and show that counsel was deficient in
not raising this claim and even if the claim should have been
raised that he would have prevailed on appeal given the
properly admitted testimony noted above Confidence in the
outcome of the direct appeal has not been undermined and habeas
relief should be denied
CONCLUSION Based on the foregoing discussions the State respectfully
requests this Honorable Court Deny the Petition for Writ of
Habeas Corpus
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by US MAILE-MAIL on March 7 2013 Benjamin S
Waxman Esq Robbins Tunkey Ross Amsel Rabin amp Waxman
PA 2250 SW Third Avenue 4th Floor Miami FL 33129
benjiwaxmanaolcom
50
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51
CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using
Courier New 12 point font
Respectfully submitted and certified
PAMELA JO BONDI
ATTORNEY GENERAL
By LESLIE T CAMPBELL
ASSISTANT ATTORNEY GENERAL Florida Bar No 0066631 Attorney for Appellee State of Fla Office of the Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach FL 33401 Primary E-Mail capappmyfloridalegalcom
Secondary E-Mail LeslieCampbellmyfloridalegalcom
(561) 837-5000 Ext 102 (561) 837-5108 (FAX)
51