DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACQUELINE LUONGO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-3770
[August 28, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 14012153CF10A.
Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant Jacqueline Luongo was charged with first-degree murder for
the death of Patricia Viveiros. While in jail awaiting trial, Appellant was
also charged with tampering with a witness and solicitation to murder that
witness. These charges were joined for trial and Appellant was found
guilty as charged on all three counts. Appellant now raises seven issues
on appeal. We write only to address Appellant’s argument that the trial
court erred in joining the charges and in denying Appellant’s motion to
sever the murder charge from the tampering and solicitation charges. On
that argument and all others raised, we affirm.
Background
While conducting a welfare check on Viveiros at her apartment, the
police discovered her body in a zipped garment bag inside the bedroom
closet. Viveiros had been handcuffed. There was white duct tape covering
her entire face and a plastic bag over her head. The autopsy revealed that
the cause of death was asphyxiation caused by the tape covering the
victim’s mouth and nose. There were no signs of forced entry into the
apartment or of a struggle inside the apartment.
A. The testimony of Maria Calderon
According to the trial testimony of Appellant’s former live-in girlfriend,
Maria Calderon, nine days before police found Viveiros’s body, Calderon
and Appellant met at a bar. During their conversation, Appellant told
Calderon that she was living with Viveiros, but that Viveiros was recently
arrested and in jail. Appellant then asked Calderon if she was interested
in helping her kill Viveiros because Viveiros had money. Calderon told
Appellant that she was not interested. Appellant then mentioned to
Calderon that Calderon could disguise herself as Viveiros so that they
could forge Viveiros’s checks.
Several days later, Appellant admitted to Calderon that Viveiros was
not in jail but was actually dead and that her body was in Viveiros’s closet.
When Calderon asked how Viveiros died, Appellant stated that she came
home and found a “big Spanish guy” choking Viveiros. Appellant stated
that this man hit her, forced her to duct tape Viveiros, and took pictures
of her while doing so. Appellant stated that she believed this man was
likely a hitman sent to kill Viveiros to prevent her from testifying in an
unrelated case. Following this conversation, while Appellant was out
getting ice, Calderon left because she wanted “nothing to do with that.”
Two days later, Appellant and Calderon met again at a hotel. Appellant
told Calderon that she had been forging Viveiros’s checks and that she
planned to leave the country. Calderon testified that she began to get
suspicious that Appellant was trying to frame her for the murder when she
realized that she had likely left her fingerprints in Viveiros’s apartment
during two overnight stays. Later that night, when Appellant was asleep,
Calderon left the room and flagged down a police officer to tell him about
Appellant’s confession to her. Appellant was taken into custody and once
the body was found, charged with first-degree murder.
B. The testimony of Nicole Okrezik and Detective Munson
While in jail, Appellant met Nicole Okrezik. At trial, Okrezik testified
that Appellant admitted to her that she murdered Viveiros. Appellant told
Okrezik that Viveiros was upset because Appellant had gone out with
Calderon and did not return until the following morning. While arguing,
Appellant attempted to quiet Viveiros by putting tape over her mouth.
When Viveiros tried to pull the tape off, Appellant handcuffed her, placed
duct tape around her entire face, and covered her head with a plastic bag.
Once Viveiros was dead, Appellant wiped down the body with alcohol,
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placed her in a garment bag, and left her in the closet.
Appellant told Okrezik that she felt Calderon had betrayed her and
“needed to be eliminated.” Appellant became persistent and repeatedly
stated that there would be no case against her if Calderon was gone.
Appellant asked Okrezik if she knew someone that could get rid of
Calderon. Fearing that Appellant would successfully find someone else,
Okrezik replied that she might know someone who would do it. Okrezik
then informed law enforcement of Appellant’s plan. The police decided
that Detective Munson would pose as a hitman for hire. Okrezik convinced
Appellant that Munson was an ex-boyfriend involved in organized crime
and was willing to kill Calderon for money.
In a recorded phone conversation with Munson, Appellant named
Calderon as the person that needed to be “taken care of.” Munson asked
Appellant whether she wanted Calderon beat up or killed. Initially,
Appellant replied that she wanted Calderon beat up. However, during the
conversation, Appellant changed her mind and said she wanted Calderon
“[t]otally gone.”
Six days later, Munson informed Appellant that Calderon was dead.
After seeing fabricated pictures of Calderon appearing dead, Appellant told
Munson that she was “definitely happy” and “[o]ne more satisfied
customer.” Appellant was then charged with solicitation to commit
murder and tampering with a witness.
C. Trial Court Proceedings
The State filed a pretrial motion seeking to join the murder count with
the solicitation and tampering counts at trial. The State argued that
joining the counts in one trial was proper because Appellant tried to have
Calderon killed in order to prevent her from testifying against her at the
murder trial. Defense counsel submitted a response, arguing that the
evidence from the solicitation and tampering charges was “highly
inflammatory” and would become a “feature of the [murder] trial.” Defense
counsel also argued that joining the charges would improperly bolster the
State’s witness and deprive Appellant of her right to a fair trial. The trial
court granted the State’s motion and ordered the charges to be tried
together. Defense counsel then filed a motion to sever the offenses. The
court denied the motion, finding that the “initial consolidation was
rightful.”
The trial lasted sixteen days. Calderon and Okrezik provided the above-
noted testimony regarding the murder (with Calderon declaring that
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Appellant killed Viveiros for her money) and solicitation to commit murder.
Detective Munson testified regarding his conversations with Appellant
about conducting “the hit” on Calderon. The recorded phone
conversations between Appellant and Munson were also played for the jury
at trial.
The jury found Appellant guilty as charged. She was sentenced to life
in prison for the murder conviction, and to a consecutive thirty-year term
for the tampering and solicitation convictions.
Analysis
We review a trial court’s decision to consolidate or sever charges for an
abuse of discretion. Estrich v. State,
995 So. 2d 613, 618 (Fla. 4th DCA
2008) (citing Smithers v. State,
826 So. 2d 916, 922-23 (Fla. 2002)).
Florida Rule of Criminal Procedure 3.150(a) controls the joinder of
offenses. It provides that multiple offenses are triable together when they
“are based on the same act or transaction or on 2 or more connected acts
or transactions.” Fla. R. Crim. P. 3.150(a).
Florida Rule of Criminal Procedure 3.152(a)(2) controls the severance
of offenses. It provides:
(2) In case 2 or more charges of related offenses are joined in
a single indictment or information, the court nevertheless
shall grant a severance of charges on motion of the state or of
a defendant:
(A) before trial on a showing that the severance is
appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense . . . .
Fla. R. Crim. P. 3.152(a)(2).
“The ‘connected acts or transactions’ requirement set forth in rule
3.150(a) requires that the charges joined for trial must be considered in
an episodic sense.” Shermer v. State,
935 So. 2d 74, 76 (Fla. 4th DCA
2006) (quoting Garcia v. State,
568 So. 2d 896, 899 (Fla. 1990)).
“Furthermore, there must be a ‘meaningful relationship’ between or among
the charges before they may be tried together.”
Id. (quoting Ellis v. State,
622 So. 2d 991, 999 (Fla. 1993)). “Thus, ‘the crimes in question must be
linked in some significant way.’”
Id. (quoting Ellis, 622 So. 2d at 1000).
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In most cases, crimes that are significantly linked fall within two
categories: 1) those “occur[ing] during a crime ‘spree’ interrupted by no
significant period of respite”; and 2) situations where, even with a
significant period of respite, one crime is causally related to the other. Id.
(citing
Ellis, 622 So. 2d at 1000).
Crimes are not significantly linked when they are separate and distinct
with no causal link other than the fact that the accused is the same
person. See Wright v. State,
586 So. 2d 1024, 1030 (Fla. 1991) (“The
episode involving the battery charges was wholly distinct from the episode
involving murder and burglary. Each episode involved different offenses,
different victims, different times and dates, different places, and different
circumstances.”); see also
Ellis, 622 So. 2d at 999 (remanding because,
although the crimes were similar, each crime was freestanding and
distinct; there was no causal link in the commission of the crimes; and the
crimes were interrupted by several months); Dupree v. State,
705 So. 2d
90, 96-97 (Fla. 4th DCA 1998) (two charges relating to the sale of drugs
were “separate and distinct” transactions; “did not arise from one
continuous sequence of events”; and “[t]he fact that both sales were to the
same undercover officer” and “occurred within a week’s time” was “hardly
enough” to connect them).
Here, the trial court found that Appellant’s tampering with a witness
and solicitation to murder that same witness were causally related to the
murder charge, as the witness at issue was cooperating with police in the
murder investigation. We agree.
Our holding comports with our decision in Sule v. State,
968 So. 2d 99
(Fla. 4th DCA 2007). There, the defendant was awaiting trial for first-
degree murder, arson, and burglary. While in jail, he approached two
other inmates and asked them to help him set up the victim’s neighbor as
the murderer and then kill the neighbor to make it look like a suicide.
Id.
at 101-02. One of the inmates brought this to the attention of detectives
and began working with them.
Id. at 102. The defendant was eventually
charged with solicitation to commit murder, solicitation to tamper with
evidence, and solicitation to commit burglary of a dwelling.
Id. After the
trial court granted the State’s motion to consolidate the charges, the
defendant unsuccessfully moved to sever his first-degree murder, arson,
and burglary charges from the solicitation charges.
Id. We affirmed,
holding that there was a causal link between all the crimes charged.
Id.
at 103. Our opinion explained the rationale for denial of Sule’s motion:
The murder of Domato and solicitation to murder Heredia and
the related charges were connected in the episodic sense. The
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murder of Domato resulted in the plot to burglarize and kill
Heredia. Evidence of the Domato murder would be admissible
in the trial of the solicitation. Likewise, evidence of the
solicitation to murder Heredia and pin the blame for the
Domato murder on him would be admissible in the Domato
murder trial. See, e.g., Heath v. State,
648 So. 2d 660, 664
(Fla. 1994) (“Evidence that a suspected person in any manner
endeavors to evade a threatened prosecution by any ex post
facto indication of a desire to evade prosecution is admissible
against the accused where the relevance of such evidence is
based on consciousness of guilt inferred from such actions.”);
Jenkins v. State,
697 So. 2d 228, 229 (Fla. 4th DCA 1997) (“a
defendant’s direct threat against a witness is relevant and may
be admitted into evidence because it could be indicative of the
defendant’s guilt of the underlying offense”). The trial court
did not err in denying the motion for severance.
Id. at 104-05.
Similarly, the trial court in the instant case properly found that all three
charges were causally related and not separate and distinct. The
solicitation and tampering occurred during an ongoing murder
investigation. See
Sule, 968 So. 2d at 102. The charges were causally
related because the murder charge induced the solicitation and tampering
charges. See
id. at 104; Fotopoulos v. State,
608 So. 2d 784, 790 (Fla.
1992) (finding that joinder was proper because one crime was used to
induce the other). The State argued that commission of solicitation and
tampering was done in an attempt to prevent a key witness from testifying
to avoid a murder conviction. See Davis v. State,
153 So. 3d 360, 367-78
(Fla. 4th DCA 2014) (citing Sule) (“The commission of one crime in an
attempt to avoid conviction for another is a sufficient connection to link
the two crimes.”). Moreover, the solicitation and tampering charges could
be reasonably construed as demonstrating Appellant’s consciousness of
guilt for Viveiros’s murder. See
Jenkins, 697 So. 2d at 229.
Conclusion
The trial court did not err by allowing the three charges to be tried
together. All three charges were causally related and were not separate
and distinct. We thus affirm the trial court’s consolidation of the charges
and the denial of severance, and further affirm (without discussion) all the
other issues raised on appeal.
Affirmed.
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DAMOORGIAN, J., and CROOM, JANET, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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