& SC15-2005 Nelson Serrano v. State of Florida and Nelson Serrano v. Julie L. Jones, etc. , 225 So. 3d 737 ( 2017 )

Supreme Court of Florida
____________
No. SC15-258
____________
NELSON SERRANO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC15-2005
____________
NELSON SERRANO,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[May 11, 2017]
PER CURIAM.
Nelson Serrano appeals the denial of his postconviction motion filed under
Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
habeas corpus.1 For the following reasons, we affirm the denial of his guilt phase
postconviction claims, deny his habeas petition, but vacate his sentences, and
remand for a new penalty phase.
I. BACKGROUND
In 2011, this Court affirmed Serrano’s four convictions for first-degree
murder and his four death sentences. Serrano v. State, 64 So. 3d 93 (Fla. 2011).
This Court explained the background of the case and murders as follows:
On May 17, 2001, Nelson Serrano was indicted under seal on
four counts of first-degree murder for the deaths of George Gonsalves,
Frank Dosso, Diane Patisso, and George Patisso. The murders
occurred on December 3, 1997, at Erie Manufacturing and Garment
Conveyor Systems in Bartow. George Gonsalves was one of
Serrano’s business partners. And Frank Dosso, Diane Patisso, and
George Patisso were respectively the son, daughter, and son-in-law of
Serrano’s other business partner, Felice (Phil) Dosso. Serrano, a dual
citizen of the United States and Ecuador, was arrested in Ecuador on
August 31, 2002, and brought to the United States.
At the guilt phase, which occurred in 2006, the State presented
the following evidence. In the 1960s, Phil Dosso and George
Gonsalves started a tool and die business, Erie Manufacturing
Cooperative, in New York. Their business provided parts to support
the garment industry. In the 1980s, Phil Dosso and George Gonsalves
met Nelson Serrano, who was working for a New Jersey company
selling slick rail systems for the garment industry. In the middle of
the 1980s, the three men created a separate company, Garment
Conveyor Systems. Serrano was responsible for designing, selling,
and installing slick rail systems, while Dosso and Gonsalves built the
parts.
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we
are remanding for a new penalty phase, we do not address Serrano’s penalty phase
claims.
-2-
In the late 1980s, the partners moved the business to Bartow,
Florida. At that time, they closed Erie Manufacturing Cooperative
and transferred all the assets to Erie Manufacturing, Inc. As part of
their oral agreement, Serrano bought into the Erie partnership and
agreed to pay Phil Dosso and George Gonsalves $75,000 each.
Therefore, all three men were equal partners in both Garment
Conveyor Systems and Erie Manufacturing. Garment moved to
Bartow as well. Serrano’s son, Francisco Serrano, began working at
the business soon after they relocated to Bartow, and Phil Dosso’s
son, Frank Dosso, began working there at a later date. Phil Dosso’s
son-in-law, George Patisso, was also an employee of the business.
By the early 1990s, the business was doing well. However,
friction between the three partners had developed. Nelson Serrano
had failed to pay the $75,000 to each of his partners. Further, there
were disagreements about the distribution of assets and accusations
that there were two sets of books. Then, in the summer of 1997, Phil
Dosso and George Gonsalves fired Francisco Serrano. Also in the
summer of 1997, Nelson Serrano opened a separate business checking
account with a different bank and deposited two Erie checks totaling
over $200,000. And Serrano instituted a civil suit against his partners.
Ultimately, Serrano was removed as president by a vote of the other
two partners, and the locks were changed on the building.
Numerous Erie employees testified to the strained relations
between Serrano and the other two partners, particularly Serrano’s
dislike of Gonsalves. Serrano made statements indicating that he
wished Gonsalves were deceased. Additionally, Phil Dosso testified
to hearing Serrano state that he felt like killing Gonsalves.
On the evening of the murders, most Erie employees left work
at 5 p.m. or shortly thereafter. However, as was his usual practice,
George Gonsalves worked late. David Catalan, an employee at Erie,
testified that when he left with another employee shortly after 5 p.m.
George Gonsalves’ car was the only car in the parking lot. Although
George Patisso and Frank Dosso remained at Erie with Gonsalves,
they did not have a car parked in front because George Patisso’s wife,
Diane Patisso, had plans to pick them up and take them to Frank
Dosso’s home for a family birthday party.
When family members began calling Frank Dosso and could
not get an answer, Phil Dosso and his wife decided to drive to Erie.
As Phil and Nicoletta Dosso entered Erie’s unlocked front door, they
discovered the deceased body of their daughter, Diane Patisso. Phil
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Dosso called 911 and ran to Frank Dosso’s office, where he
discovered the bodies of George Gonsalves, George Patisso, and
Frank Dosso.
When the first law enforcement officers arrived at the scene at
7:36 p.m., there were only three cars parked in front of the entrance:
Phil Dosso’s car, Diane Patisso’s car, and George Gonsalves’ car.
Inside Erie, law enforcement discovered twelve shell casings, eleven
from a .22 and one from a .32. All of the victims had been shot in the
head with .22 bullets, and Diane Patisso was also shot once with a .32
bullet. The three men were shot execution-style. While neither
murder weapon was ever located, the State introduced evidence that
Serrano possessed and owned multiple .22 and .32 caliber firearms.
In the office containing the three male victims, officers
discovered a blue vinyl chair with shoe impressions on the seat.
Directly above the chair, a ceiling tile had been dislodged. Although
this office was Frank Dosso’s office at the time of the murders, it had
been Nelson Serrano’s office when he worked at Erie. David Catalan
testified that on one occasion, he saw Serrano in his office with a gun.
Serrano was standing on a chair, moving a ceiling tile, and taking
papers out of the ceiling. Further, Erie employee Velma Ellis testified
that the blue chair in Frank Dosso’s office was never used and always
remained under a desk in the office and that there were papers and a
box piled on top of the chair’s seat. Ellis testified that the chair was in
its usual position under the desk when she left work on December 3,
1997, at 5 p.m. Crime analysts tested the shoe impressions on the
dusty seat of the blue vinyl chair and found that the class
characteristics and wear pattern were consistent with a pair of shoes
Serrano owned and later loaned to a nephew.
The State’s theory at trial was that Serrano kept a .32 caliber
firearm hidden in the ceiling of his office. Once he was ousted from
the company and the locks were changed he was unable to retrieve the
gun until the night of the murders. After Serrano had shot the three
male victims in his former office and was leaving the scene, Diane
Patisso entered the building and was shot with both a .22 and the
retrieved .32. An FDLE agent testified that Serrano told the agent that
he would hide a gun in the ceiling of his office when he was out of
town on business. However, Serrano’s fingerprints and DNA were
not discovered at the crime scene.
When officers first discovered the four victims at Erie, their
investigation immediately focused on Serrano. As soon as Serrano
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returned to his home from a business trip to Atlanta on December 4,
1997, detectives requested that he come to the police station for an
interview. At the police station, Serrano told law enforcement about
his problems with his partners and explained to the detective that he
had learned of the murders the previous evening when he had called
his wife from his Atlanta hotel.
During his interview with law enforcement, Serrano detailed his
business trip itinerary, which included leaving Lakeland early on the
morning of December 2, flying from Orlando to Washington, D.C.,
and, on the evening of December 2, flying from Washington to
Atlanta. Serrano indicated that he remained in Atlanta until
December 4, 1997. When asked by the detective what he thought may
have happened at Erie, Serrano replied that “somebody is getting
even; somebody they cheated, and George is capable of that.”
Thereafter, the detective took Serrano’s taped statement, which was
played for the jury. During his taped statement, Serrano stated that
maybe Diane Patisso “walked in the middle of something.”
Officers traveled to Atlanta to investigate Serrano’s alibi and
met with Larry Heflin of Astechnologies regarding his business
meeting with Serrano. Heflin testified that he met Serrano in Atlanta
on December 3 at about 9:45 a.m., and the meeting lasted
approximately one hour. Investigators also obtained the La Quinta
Inn airport hotel’s surveillance videotapes. The video showed Serrano
in the Atlanta hotel lobby at 12:19 p.m. on December 3. Ten hours
later, at 10:17 p.m., Serrano was again seen on the video, entering the
hotel lobby from the outside, wearing the same sweater and jacket as
earlier in the afternoon.
Alvaro Penaherrera, Serrano’s nephew, testified that on two
separate occasions Serrano asked Penaherrera to rent a car for him so
that Serrano’s wife would not find out about the rentals. On October
29, 1997, Serrano drove Penaherrera to the Orlando airport, where
Penaherrera picked up a rental car. Penaherrera then drove the car
and left it at a nearby valet lot. Thereafter, Serrano drove Penaherrera
back to his apartment. Penaherrera had no further contact with the
rental car and did not know who returned it on October 31, 1997, at
7:30 p.m.
Around Thanksgiving 1997, Serrano again asked Penaherrera to
rent a car for him under Penaherrera’s name because Serrano had a
girlfriend from Brazil coming into town. On November 23, 1997,
Penaherrera made a telephone reservation for a rental car for
-5-
December 3, 1997. On December 3, 1997, at 7:53 a.m., Serrano
called Penaherrera from Atlanta and asked him to call to confirm the
rental car reservation. Serrano called Penaherrera back at 8:06 a.m. to
verify that the rental car would be ready. Penaherrera then drove to
Orlando’s airport and parked his car in the parking garage, rented the
car from the terminal dealership, and drove the rental car back to the
Orlando airport parking garage, where he left it as his uncle requested.
Later that day, Serrano called Penaherrera, and Penaherrera told
Serrano where the car was located and where the keys were hidden.
As on the previous occasion in October, Penaherrera did not
expect to have any further involvement with the rental car after he left
it at the Orlando airport parking garage on December 3. However,
Serrano called Penaherrera the next day, December 4, to tell
Penaherrera that the rental car was in Tampa, not Orlando, and that
Penaherrera needed to drive to Tampa and return the car there.
Serrano told Penaherrera if he went to Tampa and returned the car,
Serrano would pay off Penaherrera’s credit card bill and Penaherrera
could pay him back without interest. Penaherrera agreed to this
arrangement and returned the rental car in Tampa at 2:10 p.m. on
December 4, 1997. Gustavo Concha, Serrano’s friend and
Penaherrera’s godfather, subsequently paid Penaherrera’s Visa bill.
Penaherrera next saw Serrano when he was visiting relatives in
Ecuador for Christmas of 1997. Serrano informed Penaherrera of the
murders at Erie and told Penaherrera that he could not say anything
about the rental cars because it would jeopardize his marriage and the
police would frame him for the murders.
In June 2000, Penaherrera, his girlfriend, and his brother were
subpoenaed to testify before the grand jury. The three spent the night
at Serrano’s house the night before their testimony. That night
Serrano asked Penaherrera to tell the grand jury that he had rented the
car for a friend with whom he had subsequently lost contact. Serrano
also gave Penaherrera and his brother suits and dress shoes to wear to
court. The pair of shoes that Serrano gave Penaherrera were seized by
law enforcement, and subsequent testing indicated that the right shoe
was consistent with the impression on the seat of the blue chair at the
murder scene.
Also in June 2000, Penaherrera spoke for the first time with law
enforcement regarding the December 1997 rental car transaction. And
after his testimony and discussions with law enforcement, Penaherrera
returned home to Orlando, where Serrano contacted him to find out
-6-
what information he had given to the grand jury and law enforcement.
After Penaherrera testified before the grand jury, Serrano sold his
home, car, and other assets and moved to Ecuador.
The State introduced evidence regarding Serrano’s air travel for
his December 1997 business trip. As explained previously, Serrano
flew from Orlando to Washington, D.C., and then to Atlanta, on
December 2, 1997. However, contrary to his statements to law
enforcement, the State also introduced evidence that Serrano traveled
back to Florida on the day of the murders using two aliases. The State
theorized that on the day of the murders Serrano flew from Atlanta to
Orlando under the name Juan Agacio. Serrano then drove the car
rented by Penaherrera on December 3 from the Orlando airport to
Bartow, where he killed the four victims. Thereafter, he immediately
drove the rental car to the Tampa airport, where he departed on a
flight back to Atlanta using the alias John White.
To support its theory and timeline of Serrano’s activities on the
day of the murders, the State introduced the videotape evidence
demonstrating that Serrano was in the La Quinta Inn’s lobby in
Atlanta shortly after noon on December 3, 1997. According to
Serrano, he returned to his hotel room for the next ten hours because
he was suffering from a migraine headache. However, the State
introduced evidence that at 1:36 p.m. on December 3 a passenger
calling himself Juan Agacio boarded Delta flight 1807 in Atlanta,
scheduled to depart at 1:41 p.m. for Orlando. At 3:05 p.m., the
passenger purporting to be Juan Agacio arrived in Orlando on flight
1807, and at 3:49 p.m., the rental car that Penaherrera had rented
exited the Orlando parking garage.
Serrano’s fingerprint was located on the parking garage ticket,
indicating that Serrano departed from the Orlando airport garage at
3:49 p.m. on December 3, 1997. And Serrano has a son, who was
named Juan Carlos Serrano at birth and whose mother’s maiden name
is Gladys Agacio. Additionally, the round-trip ticket for the Atlanta–
to–Orlando flight of the passenger flying under the name Juan Agacio
was purchased with cash at the Orlando airport on November 23,
1997, which is the same date that Penaherrera reserved the rental car
for December 3, 1997. The State also introduced evidence that
Serrano’s vehicle left the Orlando airport’s parking garage about
twenty minutes after the passenger traveling under the name Juan
Agacio purchased his ticket. The return portion of the flight was
never used.
-7-
At approximately 5:30 p.m. on December 3, 1997, a person was
seen standing off the side of the road near Erie’s building. When John
Purvis left work on December 3, 1997, he noticed the man wearing a
suit standing in the grassy area with no car in the vicinity. The man
was holding his coat and hands in front of his face as if he were
lighting a cigarette. Both Alvaro Penaherrera and Maureen Serrano
testified that Serrano smoked, but they did not testify that he
specifically smoked cigarettes. Purvis described the man, and law
enforcement made a composite sketch that was shown to the jury.
Approximately two hours after the murders, at 7:28 p.m., the
passenger flying under the name John White arrived at Tampa
International Airport and checked into Delta Airlines for flight 1272
to Atlanta. Similar to the purchasing process for the ticket in the
name of Juan Agacio, the purchaser paid for a round-trip ticket at
Tampa International Airport on November 23, 1997, and never used
the return portion of the ticket. Flight 1272 was scheduled to arrive in
Atlanta at 9:41 p.m.
At 10:17 p.m., Serrano was observed in Atlanta on videotape
walking into the La Quinta Inn airport hotel lobby from the outside,
wearing the same clothes he had been wearing ten hours earlier. After
being observed in the hotel lobby, Serrano used his cell phone to call
various individuals, including his wife. The next morning he made
multiple calls to Alvaro Penaherrera telling him he had to return the
rental car that was now located at Tampa airport.
Furthermore, the State presented evidence that the car rented by
Penaherrera on December 3 had been driven 139 miles. The distance
from the Orlando airport to Erie is eighty miles, and the distance from
Erie to the Tampa airport is fifty miles, totaling 130 miles.
While incarcerated awaiting trial, Serrano spoke to fellow
inmate and “jailhouse lawyer,” Leslie Todd Jones, about his case.
Serrano denied any involvement in the murders, telling Jones that he
believed a mafia hitman may have committed the murders, or
alternatively, that Frank Dosso wanted to take over the business from
George Gonsalves. The main theory Serrano described involved a
hitman Serrano knew only as John, who was owed a substantial
amount of money by the Dosso and Gonsalves families. Serrano
explained to Jones that he and the hitman drove to the airports in
Tampa and Orlando and that John purchased tickets under the names
of Todd White and Juan Agacio. Serrano told Jones that the hitman
had planned to approach the business partners on Halloween night,
-8-
but it was raining and the business was closed. Serrano also told
Jones about his fingerprint being found on a parking ticket in Orlando,
but Serrano claimed that an FDLE agent had planted his fingerprint.
After law enforcement learned about the Halloween incident
from inmate Jones, they began investigating and discovered almost an
identical pattern of travel as the travel surrounding the December 3,
1997, murders. Serrano once again was traveling on a business trip
from Orlando to Charlotte from October 30 to November 2, 1997.
And as previously discussed, on October 29, Serrano took Alvaro
Penaherrera to the Orlando airport, where Penaherrera rented a car for
Serrano and left it at a nearby valet lot. The next morning, October
30, 1997, Serrano flew from Orlando to Charlotte with his flight
arriving in Charlotte at 8:34 a.m. The following day, Halloween,
someone traveling under the name Juan Agacio took a flight departing
from Charlotte at 1:40 p.m. and arriving in Orlando at 3:07 p.m. At
7:30 p.m., a passenger identified as John White was scheduled to
depart on a flight from Tampa to Charlotte.
During the guilt phase, the defense maintained that Serrano had
been in an Atlanta hotel room with a migraine at the time of the
murders. The defense emphasized that no forensic evidence linked
Serrano to the scene of the crimes. The defense also pointed out that
there was evidence of robbery at the scene as several offices were in
disarray, Frank Dosso’s Rolex watch was missing, and George
Patisso’s gold chain was missing. However, the jury returned a
verdict finding Serrano guilty on four counts of first-degree murder.
At the penalty phase, the State presented victim impact
statements, and the parties stipulated that Serrano was fifty-nine years
of age at the time of the murders and that Serrano had no prior
criminal history. The defense presented evidence that Serrano never
received any disciplinary reports while incarcerated awaiting trial.
The jury recommended a sentence of death by a vote of nine to three
for each of the four murder counts.
At the Spencer hearing, Serrano presented numerous witnesses,
some of whom testified by videotape from Ecuador. Then, on June
26, 2007, the trial court sentenced Serrano to death for each of the
four murders.
-9-
Id. at 98-103 (footnote omitted).2
On direct appeal, this Court affirmed Serrano’s convictions and sentences,
rejecting the nine issues raised by Serrano and finding the death sentences
proportionate.3
2. “The trial court found the following aggravators in regards to all four
murders: (1) the murders were committed in a cold, calculated, and premeditated
manner (great weight); and (2) Serrano was convicted of other capital felonies (the
contemporaneous murders) (great weight). The trial court also found that the
murder of Diane Patisso was committed for the purpose of avoiding arrest (great
weight). Additionally, the trial court found the following mitigators: (1) Serrano
had no significant history of prior criminal activity (great weight); (2) Serrano was
in his late fifties at the time of the crimes (some moderate weight); (3) Serrano
performed well in school (moderate weight); (4) Serrano has a good social history
(moderate weight); (5) Serrano had no history of drug or alcohol abuse (some
weight); (6) Serrano was a successful Hispanic immigrant (moderate weight); (7)
Serrano displayed positive behavior during his pretrial incarceration (some
weight); (8) Serrano displayed positive behavior during his court appearances
(some weight); (9) Serrano expressed remorse regarding the death of Diane Patisso
(slight weight); (10) Serrano had a good employment history (some weight); (11)
Serrano was a good husband (some weight); (12) he was a good father (some
weight); (13) Serrano was positively involved in his religion (some weight); and
(14) he had a significant history of good works (moderate weight).” Serrano, 64
So. 3d at 103.
3. Serrano raised the following on direct appeal: “(1) whether the
circumstantial evidence is sufficient to support his convictions; (2) whether
Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the
trial court properly denied Serrano’s motions to dismiss the indictment and divest
itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles
Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a
change of venue; (6) whether the testimony of the State’s bloodstain pattern expert
was admissible; (7) whether the State improperly cross-examined Serrano’s
character witnesses about collateral crimes at the Spencer hearing; (8) whether the
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Thereafter, Serrano filed a motion for postconviction relief and several
amendments. During postconviction proceedings, Serrano obtained STR DNA
testing of a plastic glove discovered at the crime scene under Diane Patisso’s body
as well as STR DNA testing of two cigarette butts located in Erie’s parking lot.
Serrano also obtained a postconviction order requiring fingerprint comparisons of
several unknown fingerprints discovered at the crime scene, but the postconviction
claim relating to the fingerprints was withdrawn after Serrano’s fingerprint was
subsequently identified on a piece of paper that had been discovered near one of
the victim’s body.
After holding an evidentiary hearing in May 2014, the trial court denied
Serrano’s motion for postconviction relief. This appeal and habeas petition
followed.
I. ANALYSIS
A. Letters
Serrano alleges that the State violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose a cover letter accompanying the United States’
extradition request, which indicated that the death penalty would not be sought if
Serrano were extradited from Ecuador, and by failing to disclose a letter received
avoid arrest aggravator was properly submitted to the jury and found by the trial
court; and (9) whether Serrano’s death sentence is constitutional.” Id. at 104.
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by the state attorney from the Ecuadorian Consul, which expressed Ecuador’s
displeasure with the potential imposition of the death penalty. However, we affirm
the denial of this claim.
“Under Brady, the State must disclose to the defense knowledge of material
exculpatory or impeachment evidence.” Jones v. State, 998 So. 2d 573, 579 (Fla.
2008). As this Court has explained,
[t]o demonstrate a Brady violation the defendant must prove that (1)
the evidence is favorable to him, either because it is exculpatory or
because it is impeaching; (2) the State willfully or inadvertently
suppressed it; and (3) that the suppression resulted in prejudice.
Evidence is prejudicial or material under Brady if there is a reasonable
probability that had the evidence been disclosed, the result of the trial
would have been different. United States v. Bagley, 473 U.S. 667,
678 (1985). Thus, the critical question is whether the favorable
evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict. Strickler v.
Greene, 527 U.S. 263, 290 (1999) (quoting Kyles[ v. Whitley, 514
U.S. 419, 435 (1995)]).
Id. at 579-80. “Questions of whether evidence is exculpatory or impeaching and
whether the State suppressed evidence are questions of fact, and the trial court’s
determinations of such questions will not be disturbed if they are supported by
competent, substantial evidence.” Taylor v. State, 62 So. 3d 1101, 1114 (Fla.
2011). For Brady claims, “the defendant ultimately carries the burden of
establishing a prima facie case based upon a legally valid claim.” Id. at 1115.
Here, Serrano failed to demonstrate that the extradition packet cover letter
and the Ecuadorian Consul’s letter constitute Brady material. The promise that the
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death penalty would not be sought if Ecuador extradited Serrano, which Ecuador
did not do, is not favorable to Serrano as exculpatory or impeachment evidence.
The Ecuadorian Consul’s letter expressing Ecuador’s opposition to the death
penalty also does not constitute exculpatory or impeachment evidence. As such,
Serrano’s Brady claim is without merit. See Hurst v. State, 18 So. 3d 975, 1003
(Fla. 2009) (“The State’s failure to disclose the notes regarding Hess is not a Brady
violation because the notes are not exculpatory or impeaching and do not provide
any basis to undermine our confidence in the verdict.”).
B. Closing Argument
Next, Serrano claims that trial counsel was ineffective for failing to object to
portions of the State’s closing argument in the guilt phase, namely the State’s
description of Serrano as diabolical and a liar, the State’s comments that allegedly
shifted the burden of proof, and the State’s discussion of the presumption of
innocence. However, because Serrano failed to establish prejudice, this Court
affirms the denial of relief.
Following the United State Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective
assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
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demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)).
Regarding the deficiency prong of Strickland, there is a strong presumption
that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690.
Moreover, “[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. Further, the defendant carries the
burden to “overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). And counsel cannot be deemed ineffective
for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366,
1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So. 2d 1087
(Fla. 2008).
“Regarding the prejudice prong of Strickland, the defendant must show that
there is a reasonable probability that, ‘absent the [deficient performance], the
factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis v.
State, 109 So. 3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 695). “A
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reasonable probability is a ‘probability sufficient to undermine confidence in the
outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
“Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the trial court’s factual
findings that are supported by competent, substantial evidence, but reviewing the
trial court’s legal conclusions de novo.” Dennis, 109 So. 3d at 690.
On direct appeal, “Serrano allege[d] that the State improperly called Serrano
diabolical and a liar during closing arguments.” Serrano, 64 So. 3d at 111.
Serrano also alleged on direct appeal “that the State improperly shifted the burden
of proof by stating the following during closing arguments: (1) ‘You can’t come
up with any other theory that fits that anybody else would have done it;’ (2) ‘He
talks about this being a professional hit. There is no evidence. There is no
evidence that these crimes are any kind of professional hit.’ ” Id. This Court
rejected both claims, explaining that they were not preserved for appellate review
by contemporaneous objections. Id. Additionally, with both claims, this Court
concluded that, if there was error, the error did not constitute fundamental error.
Id. Therefore, “[b]ecause [Serrano] could not show the comments were
fundamental error on direct appeal, he likewise cannot show that trial counsel’s
failure to object to the comments resulted in prejudice sufficient to undermine the
outcome of the case under the prejudice prong of the Strickland test.” Chandler v.
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State, 848 So. 2d 1031, 1046 (Fla. 2003); see also Thompson v. State, 759 So. 2d
650, 664 (Fla. 2000) (“Because none of these prosecutorial comments would have
constituted reversible error had they been objected to at trial, we affirm the trial
court ruling summarily denying this claim.”).
Regarding the State’s discussion of the presumption of innocence during
closing argument, Serrano also cannot demonstrate prejudice. Even if the State’s
brief discussion was erroneous, the jury was properly instructed about the
presumption of innocence by the trial judge. And the trial judge instructed the jury
that it must follow the law as set out in the jury instructions. Moreover, as the
postconviction court explained in its order denying relief, the State’s comments
when read in their entirety appear to be an attempt to argue that the State had met
its burden of proof in the case through the presentation of evidence. Cf. Taylor v.
State, 62 So. 3d at 1113 (concluding that comments “the presumption of innocence
does not leave the defendant until evidence has been presented that wipes away
that presumption” and that “[t]here is no longer a presumption of innocence as
evidence has been presented” were not improper but were an attempt to state the
belief that the State satisfied the burden of proof). As a result, there is not a
reasonable probability of a different result. In other words, our confidence in the
outcome is not undermined.
Accordingly, we affirm the denial of this claim.
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C. Travel Timeline
Serrano also asserts that trial counsel was ineffective in failing to investigate
and present evidence calling into question the State’s timeline for Serrano’s travel
between Atlanta, Orlando, Bartow, Tampa, and back to Atlanta on the day of the
murders. However, we affirm the postconviction court’s denial of this claim.
First, Serrano has failed to demonstrate deficiency. Trial counsel Norgard
testified at the postconviction evidentiary hearing that he closely reviewed the
alleged travel timeline and that, after considering his personal experiences
traveling in these locations as well as comparing the timeline with others’ personal
experiences, he believed the timeline was tight, but “doable.” And trial counsel
strenuously argued to the jury at trial that the State’s timeline was very improbable,
if not impossible. Serrano has not demonstrated that this investigation and strategy
regarding the travel timeline was unreasonable. See generally Atkins v. Dugger,
541 So. 2d 1165, 1166 (Fla. 1989) (“One tactic available to counsel is to present
expert testimony. However, it is by no means the only tactic, nor is it required.”).
Second, Serrano has failed to demonstrate prejudice. During the
postconviction proceedings, Serrano never introduced any evidence indicating that
a more complete investigation into the timeline or hiring an individual to reenact
the timeline would have changed Serrano’s defense at trial or would have further
called the State’s timeline into question. Cf. Conahan v. State, 118 So. 3d 718,
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727-28 (Fla. 2013) (holding that the defendant could not establish prejudice for
trial counsel’s failure to hire an expert when the expert’s testimony would not have
changed the nature of the State’s evidence). Thus, Serrano has failed to establish a
reasonable probability of a different result. In other words, our confidence in the
outcome is not undermined.
Accordingly, this Court affirms the denial of this claim.
D. Law Enforcement Testimony
Serrano next claims that trial counsel was ineffective for failing to object to
law enforcement’s testimony during the guilt phase and the prosecutor’s comment
during opening statement that the police did not believe the crime was motivated
by robbery. However, this Court affirms the denial of relief.
First, the admission of this testimony and the prosecutor’s comment about
the testimony were not improper. Evidence of a defendant’s motive and testimony
about the course of law enforcement’s investigation are admissible. See generally
Craig v. State, 510 So. 2d 857, 863 (Fla. 1987) (“While evidence of motive is not
necessary to a conviction, when it is available and would help the jury to
understand the other evidence presented, it should not be kept from them merely
because it reveals the commission of crimes not charged.”); Kearse v. State, 662
So. 2d 677, 684 (Fla. 1995) (“We find no error in the admission of Tedder’s
testimony regarding the transmissions to dispatch or the tape of those
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transmissions. The State did not offer this evidence to prove the truth of the matter
asserted, but rather to establish the sequence of events and to explain why the
police investigation focused on Kearse as the perpetrator.”). And trial counsel
cannot be deemed deficient for failing to make a meritless objection.
Moreover, even if there was any error, Serrano could not demonstrate
prejudice. The jury heard evidence that Serrano himself told law enforcement that
he did not believe the murders were motivated by robbery. Further, trial counsel
was not prevented from arguing that robbery might have been the motive based
upon the evidence presented by the State that two victims were missing a watch
and necklace respectively and that the crime scene was discovered in disarray.
Thus, there is no reasonable probability of a different result had trial counsel
objected. In other words, our confidence in the outcome is not undermined.
Accordingly, we affirm the denial of this claim.
E. Shoe Size
Additionally, Serrano argues that trial counsel was ineffective for failing to
present evidence of Serrano’s shoe size. However, we affirm the denial of relief.
Serrano has failed to demonstrate deficiency. At the evidentiary hearing,
trial counsel testified that he decided to not present evidence of Serrano’s shoe size
in order for the defense to retain first and last closing argument. Trial counsel
stated that he believed the State’s presentation of the size 8½ shoes obtained from
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Serrano would suffice. Trial counsel’s decision was not “outside the broad range
of reasonably competent performance under prevailing professional standards.”
Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932).
Furthermore, Serrano has failed to demonstrate prejudice. The investigator
hired by postconviction counsel to measure Serrano’s feet determined that Serrano
wore a size 9 shoe in October 2013. And, while evidence was presented at trial
that the shoe Serrano loaned his nephew Alvaro Penaherrera, which was consistent
with the shoeprint discovered at the crime scene, is a size 7, evidence was also
presented at trial that Serrano loaned his other nephew size 8½ shoes in a different
style. See Serrano, 64 So. 3d at 101. Moreover, the State’s podiatrist testified at
the evidentiary hearing that an individual’s shoe size often increases as an
individual ages, and the murders in this case took place nearly 16 years before
Serrano’s feet were sized during postconviction proceedings. Also, the State
presented evidence at the evidentiary hearing that the size 7 DeRizzo shoes loaned
to Penaherrera that matched the print at the crime scene were almost the exact
same size as the size 8½ Bostonian Florentine shoes that Serrano loaned to his
other nephew. In fact, the size 7 shoes were only .1 centimeters shorter than the
8½ shoes. Thus, there is no reasonable probability of a different result had trial
counsel introduced evidence of Serrano’s shoe size. In other words, our
confidence in the outcome is not undermined.
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Accordingly, we affirm the denial of this claim.
F. Giglio Claim Regarding John Purvis
Serrano claims that the State, in violation of Giglio v. United States, 405
U.S. 150 (1972), presented false testimony from John Purvis regarding the
individual Purvis witnessed standing outside Erie near the time of the murders.
However, we affirm the denial of this claim.
“To establish a Giglio violation, it must be shown that: (1) the testimony
given was false; (2) the prosecutor knew the testimony was false; and (3) the
statement was material.” Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003).
“Under Giglio, once a defendant has established that the prosecutor knowingly
presented false testimony at trial, the State bears the burden to show that the false
evidence was not material.” Id. at 507.
Here, there is competent, substantial evidence to support the postconviction
court’s factual finding that John Purvis’ testimony was not false. See Davis v.
State, 136 So. 3d 1169, 1186-87 (Fla. 2014) (“[T]he postconviction court
concluded that Williams’ deposition testimony was ambiguous and thus did not
demonstrate that her trial testimony was false. The postconviction court did not err
in denying relief. The postconviction court’s factual conclusion that Williams’
testimony was not false is supported by competent, substantial evidence.”). John
Purvis’ testimony at trial in 2006 was relatively consistent with his pre-hypnosis
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statements to law enforcement in 1999.4 He testified at trial that the man he saw
outside Erie was holding his hands “like he was lighting a cigarette.” And, in
1999, Purvis stated that the individual “had pulled his coat up like this and was
lighting a cigarette in the wind.” Further, both at trial and in his statement to law
enforcement in 1999, Purvis described the individual as non-Caucasian and
possibly Hispanic with black hair even though Purvis also included the possibility
in his statement in 1999 that the non-Caucasian individual might be Hispanic or
Asian. However, the slight differences and ambiguities in Purvis’ descriptions
appear to be the result of the same witness giving multiple statements describing
the same thing over time. Serrano has failed to demonstrate that the State
presented false testimony.
Additionally, Serrano failed to present any testimony during postconviction
proceedings to show the falsity of Purvis’ testimony at trial that the pre-hypnosis
composite sketch introduced at trial “resemble[d] the person best you could
describe it for this artist that you saw outside Erie Manufacturing that day.”
4. Testimony regarding post-hypnosis statements is inadmissible. See
Stokes v. State, 548 So. 2d 188, 196 (Fla. 1989) (“[T]estimony of a witness who
has undergone hypnosis for the purpose of refreshing his or her memory of the
events at issue is inadmissible as to all additional facts relating to those events
from the time of the hypnotic session forward. A witness who has been hypnotized
may testify to statements made before the hypnotic session, if they are properly
recorded.”).
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Serrano’s argument is based on the assumption that Purvis’ second, post-hypnotic
composite sketch must be a more reliable reflection of his recollection at trial than
the pre-hypnotic composite sketch, but that assumption is not necessarily true. As
this Court has explained, “although some experts profess the belief that
hypnotically refreshed testimony is reliable, many more experts have arrived at the
opposite conclusion.” Stokes v. State, 548 So. 2d 188, 194 (Fla. 1989) (footnote
omitted) (ruling that additional hypnotically refreshed testimony is inadmissible).
Accordingly, this Court affirms the denial of this Giglio claim.
G. Ineffective Assistance of Counsel Claim Regarding John Purvis
Next, Serrano alleges that trial counsel was ineffective for failing to object to
John Purvis’ allegedly false testimony that was presented in violation of Giglio.
Serrano also claims that trial counsel was ineffective for failing to depose Purvis,
for failing to cross-examine him regarding his pre-hypnosis description of the man
he saw outside as being non-Caucasian and possibly Asian or Hispanic and
lighting a cigarette, and for failing to seek the admission of Purvis’ post-hypnotic
statements and composite sketch. However, because Serrano failed to demonstrate
deficiency, we affirm the postconviction court’s denial of relief.
First, as explained previously, John Purvis’ testimony describing the man he
saw outside Erie was not false testimony in violation of Giglio. Therefore, trial
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counsel cannot be deficient for failing to raise a meritless objection based on
Giglio.
Second, Serrano failed to establish that trial counsel was deficient for failing
to seek the admission of Purvis’ hypnotically refreshed statements and composite
sketch. In Stokes, 548 So. 2d at 196, this Court held that “the testimony of a
witness who has undergone hypnosis for the purpose of refreshing his or her
memory of the events at issue is inadmissible as to all additional facts relating to
those events from the time of the hypnotic session forward.” However, this Court
explained that “[a] witness who has been hypnotized may testify to statements
made before the hypnotic session, if they are properly recorded.” Id.
Serrano argues that Purvis’ hypnotically refreshed statements fall under an
exception outlined in the United States Supreme Court’s decision in Rock v.
Arkansas, 483 U.S. 44 (1987). However, Rock involved hypnotically refreshed
statements in the context of a criminal defendant’s constitutional right to testify in
his or her own defense. Since Purvis was a State witness, not the defendant, Rock
is inapplicable here. Consequently, because Purvis’ hypnotically refreshed
statements and the post-hypnosis composite sketch were inadmissible, trial counsel
cannot be deemed deficient for failing to present it. See Owen v. State, 986 So. 2d
534, 546 (Fla. 2008) (“Trial counsel cannot be deemed ineffective for failing to
present inadmissible evidence.”).
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Third, Serrano failed to demonstrate that trial counsel was deficient for
failing to depose Purvis and cross-examine him regarding alleged discrepancies in
his descriptions of the individual he saw the night of the murders. At the
evidentiary hearing, trial counsel explained that he did not want to diminish Purvis’
testimony or undermine his credibility because Purvis’ description of the
individual being 25 to 30 years old was favorable to the defense’s case. Serrano
was significantly older than the man Purvis described, and trial counsel “were
arguing that Mr. Purvis saw somebody other than Mr. Serrano out there[. W]e
were trying to convince the jury that he saw who was the killer.” Trial counsel’s
strategic decision was reasonable, and Serrano has failed to demonstrate deficiency
under Strickland.
Accordingly, this Court affirms the denial of relief.
H. DNA Testing
Further, Serrano alleges postconviction STR DNA testing results warrant a
new trial and that trial counsel was ineffective for failing to seek STR DNA
testing. However, we affirm the denial of both claims.
“This Court has previously held that for a conviction to be set aside based on
a claim of newly discovered evidence, the defendant must meet two
requirements[:]”
First, the evidence must not have been known by the trial court, the
party, or counsel at the time of trial, and it must appear that the
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defendant or defense counsel could not have known of it by the use of
diligence. Second, the newly discovered evidence must be of such
nature that it would probably produce an acquittal on retrial. See
Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (“Jones II”). Newly
discovered evidence satisfies the second prong of the Jones II test if it
“weakens the case against [the defendant] so as to give rise to a
reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v.
State, 678 So. 2d 309, 315 (Fla. 1996)). In determining whether the
newly discovered evidence compels a new trial, the trial court must
“consider all newly discovered evidence which would be admissible,”
and must “evaluate the weight of both the newly discovered evidence
and the evidence which was introduced at the trial.” Jones v. State,
591 So. 2d 911, 916 (Fla. 1991) (“Jones I”).
Spann v. State, 91 So. 3d 812, 815-16 (Fla. 2012). Moreover, this Court has
explained that “[w]hen the trial court rules on a newly discovered evidence claim
after an evidentiary hearing, we accept the trial court’s findings on questions of
fact, the credibility of witnesses, and the weight of the evidence if based upon
competent, substantial evidence.” Waterhouse v. State, 82 So. 3d 84, 101 (Fla.
2012) (quoting Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008)).
Here, the second prong of the newly discovered evidence standard is not
satisfied. At the evidentiary hearing, all three DNA witnesses testified that Serrano
could neither be included nor excluded from the DNA located in the palm of the
plastic glove discovered under Diane Patisso’s body. And while one of the
witnesses testified that Serrano could be excluded as a contributor to the mixture of
approximately three people on the glove fingers, the other two experts disagreed.
The other two experts, one of whom was even called by Serrano, testified that
- 26 -
there was not enough information using STR technology to either exclude or
include Serrano as having contributed to the mixture. All three explained that
victim George Patisso was the major contributor to the mixture on the glove
fingers. Considering this evidence as well as the evidence presented at trial, it is
clear that the inconclusive STR DNA evidence would not probably produce an
acquittal on retrial because it does not give rise to a reasonable doubt as to
Serrano’s culpability.
Additionally, Serrano failed to establish that trial counsel was ineffective for
failing to seek this STR DNA testing. At the evidentiary hearing, trial counsel
explained that the State had no DNA evidence linking Serrano to the crime scene,
and he did not want to risk the possibility of establishing such a link with a defense
request for additional DNA testing. Instead, trial counsel chose to stress to the jury
that there was no physical evidence demonstrating that Serrano was at Erie the
night of the murders. This decision was reasonable and not “outside the broad
range of reasonably competent performance under prevailing professional
standards.” Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932).
Consequently, Serrano did not establish deficiency.
Serrano also failed to demonstrate prejudice. There is not a reasonable
probability of a different result if trial counsel had presented the inconclusive STR
DNA testing of the plastic glove. Three experts agreed that the further DNA
- 27 -
testing of the palm of the glove found under one of the four victims could not
exclude Serrano, and two of three experts agreed that further DNA testing of the
glove fingers could not exclude Serrano. In other words, our confidence in the
outcome is not undermined.
Accordingly, this Court affirms the denial of these newly discovered
evidence and ineffective assistance of counsel claims.
I. Motion For New Trial
In his habeas petition, Serrano alleges that appellate counsel was ineffective
for failing to assert trial counsel’s ineffectiveness on the record for not including a
challenge to the sufficiency of the evidence in Serrano’s motion for a new trial
after the jury’s verdict. However, we deny relief.
Claims of ineffective assistance of appellate counsel are appropriately
presented in a petition for a writ of habeas corpus. Valle v. Moore, 837 So. 2d
905, 907 (Fla. 2002); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). The
standard of review for claims of ineffective assistance of appellate counsel mirrors
the Strickland standard for ineffective assistance of trial counsel. Valle, 837 So. 2d
at 907. In order to grant habeas relief on ineffectiveness of appellate counsel, this
Court must determine
first, 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
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appellate process to such a degree as to undermine confidence in the
correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986) (citing Johnson v.
Wainwright, 463 So. 2d 207, 209 (Fla. 1985)).
Additionally, appellate counsel cannot be deemed ineffective for failing to
raise meritless issues or issues that were not properly raised in the trial court and
are not fundamental error. Valle, 837 So. 2d at 908. “In fact, appellate counsel is
not necessarily ineffective for failing to raise a claim that might have had some
possibility of success; effective appellate counsel need not raise every conceivable
nonfrivolous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983);
Provenzano v. Dugger, 561 So. 2d 541, 549 (Fla. 1990).
In Reed v. State, 875 So. 2d 415, 439 (Fla. 2004), this Court denied a similar
habeas claim regarding trial counsel’s alleged ineffectiveness for the failure to file
a motion for new trial or other motion “challenging the legal sufficiency of the
State’s case.” In Reed, this Court first explained that “[t]o the extent that Reed
claims his trial counsel rendered ineffective assistance of counsel, this issue is
improperly raised in a petition for writ of habeas corpus.” Id. at 439-40. Then,
this Court in Reed noted that “trial counsel moved for directed judgment of
acquittal at the conclusion of the State’s case-in-chief.” Id. at 440. Finally, this
Court in Reed explained that, because this Court found the evidence sufficient on
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direct appeal, it would not have found any merit to a claim challenging sufficiency
if one had been raised by appellate counsel. Id.
Likewise, trial counsel here moved for a directed verdict after the State’s
case-in-chief, and, on direct appeal, this Court concluded that the circumstantial
evidence was sufficient to support Serrano’s four convictions for first-degree
murder. Serrano, 64 So. 3d at 104-05. The end result of this Court’s sufficiency
analysis would not have been any different. Accordingly, appellate counsel cannot
be deemed ineffective for failing to raise this meritless issue.
J. Polygraph Evidence
In his next habeas claim, Serrano asserts that appellate counsel was
ineffective for failing to challenge the trial court’s ruling regarding the
admissibility of polygraph examinations. Prior to trial, trial counsel moved to
introduce evidence of polygraphs given to three State witnesses, namely Alvara
Penaherrera, Gustavo Concha, and David Catalan. After holding a hearing under
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial court denied the
motion.
This Court has repeatedly explained that polygraph evidence is generally
inadmissible in Florida. See Duest v. State, 12 So. 3d 734, 746 (Fla. 2009); Walsh
v. State, 418 So. 2d 1000, 1002 (Fla. 1982) (“[P]olygraph evidence is inadmissible
in an adversary proceeding in this state.”). And, in Gosciminski v. State, 132 So.
- 30 -
3d 678, 701-04 (Fla. 2013), after reviewing the evidence presented at the Frye
hearing, this Court affirmed the trial court’s ruling that polygraphs are not
generally accepted in the scientific community and are, therefore, inadmissible.
Accordingly, appellate counsel cannot be deemed deficient for failing to
raise a meritless claim regarding the admissibility of polygraph evidence. We deny
this habeas claim.
K. Firearms
Serrano also alleges that appellate counsel was ineffective for failing to more
directly argue on direct appeal that evidence of Serrano’s gun collection was
inadmissible at trial. However, because Serrano cannot demonstrate prejudice, we
deny this habeas claim.
In the direct appeal, appellate counsel raised a variation of this claim, which
this Court rejected. Specifically, as part of Serrano’s claim that prosecutorial
misconduct required reversal, appellate counsel alleged “that the State improperly
elicited evidence that Serrano owned multiple guns for the purpose of implying
that since Serrano owned a lot of guns, he must have been the killer in this case.”
Serrano, 64 So. 3d at 110. This Court explained that, “[a]lthough general
ownership of guns does not provide evidence that one committed a murder, the
evidence introduced in this case demonstrated that Serrano was familiar with and
owned the caliber of firearms used to commit these murders.” Id. at 110-11.
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Importantly, this Court also stated that, “even if the admission of this gun evidence
were considered error, the error would be harmless beyond a reasonable doubt.”
Id. at 111.
Because this Court determined that any error in admitting the gun evidence
was harmless, Serrano cannot demonstrate prejudice under Strickland. See Cox v.
State, 966 So. 2d 337, 347 (2007) (“The harmless error test as articulated by this
Court requires the State ‘as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the error contributed
to the conviction.’ State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Thus, in
concluding that the prosecutor’s misstatements of the law during voir dire
constituted harmless error, we held that there was no reasonable probability that
these misstatements contributed to Cox’s conviction. See id. Therefore, regardless
of whether counsel was deficient for failing to object to improper statements by the
prosecution, Cox cannot demonstrate prejudice under the second prong of
Strickland.”).
Accordingly, we deny relief.
L. Hurst
Finally, we consider whether Serrano is entitled to relief after the United
States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016).
- 32 -
Because the jury recommended the death penalty on all four counts by a vote of
nine to three, we conclude that Serrano’s death sentences violate Hurst. See
Kopsho v. State, 209 So. 3d 568, 569-70 (Fla. 2017). We must then consider
whether the Hurst error was harmless beyond a reasonable doubt:
The harmless error test, as set forth in Chapman[v. California, 386
U.S. 18 (1967),] and progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed
to the conviction.
Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting DiGuilio, 491 So. 2d at
1138), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).
Because the jury in this case recommended death on all four counts by a
vote of nine to three, “we cannot determine that the jury unanimously found that
the aggravators outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can
only determine that the jury did not unanimously recommend . . . sentence[s] of
death.” Id. Therefore, because we cannot say that there is no possibility that the
error did not contribute to the sentences, the error in Serrano’s sentencing was not
harmless beyond a reasonable doubt.
Accordingly, we vacate the death sentences and remand for a new penalty
phase. See Hurst, 202 So. 3d at 69.
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III. CONCLUSION
For the foregoing reasons, we affirm the denial of Serrano’s postconviction
guilt phase claims, deny his habeas petition, vacate his death sentences, and
remand for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority’s decision except its vacating of the death
sentences pursuant to Hurst.
CANADY and LAWSON, JJ., concur.
An Appeal from the Circuit Court in and for Polk County,
Donald G. Jacobsen, Chief Judge - Case No. 532001CF003262A0XXXX
And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida; and Louis G. Carres, Special Assistant Capital Collateral
Regional Counsel, Northern Region, West Palm Beach, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake,
Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
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