SC03-1966 – Manuel Pardo, Jr. v. State Of Florida

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SC03-1966 – Manuel Pardo, Jr. v. State Of Florida - Revised 10/19/2006

State: Florida

Court: Supreme Court

Docket No: sc03-1966

Case Date: 06/29/2006

Plaintiff: SC03-1966 – Manuel Pardo, Jr.

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC03-1966
MANUEL PARDO, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC04-2244
MANUEL PARDO, JR.,
Petitioner,
vs.
JAMES R. MCDONOUGH, etc.,
Respondent.
[June 29, 2006]
REVISED OPINION
PER CURIAM.
Manuel Pardo, Jr., who is under a sentence of death, appeals the denial of a
motion for postconviction relief and petitions for a writ of habeas corpus.  We have

jurisdiction.  See art. V, § 3(b)(1), (9), Fla. Const.  For the reasons that follow, we
affirm the denial of postconviction relief and deny Pardo’s habeas petition.
FACTS AND PROCEDURAL HISTORY
This is Pardo’s first postconviction appeal in a case in which he was
convicted of nine murders committed in five separate episodes between January
and April of 1986.  Pardo took the witness stand and admitted all of the killings.
The facts below are taken partly from this Court’s opinion in Pardo’s direct appeal,
Pardo v. State, 563 So. 2d 77 (Fla. 1990), and partly from the records in the direct
appeal and the postconviction proceedings.
Pardo and a codefendant, Garcia, were charged with the murders.  The trial
court severed the defendants’ trials after a mistrial, and each defendant was tried
separately.  Pardo’s counsel withdrew a request for severance that had been
granted on several counts.  Pardo’s trial encompassed nine counts of first-degree
murder as well as charges for related robbery and firearm offenses.  Id. at 78.
Before trial, Pardo’s counsel had him examined by a clinical psychologist,
Dr. Syvil Marquit, both for sanity at the time of the murders and competence to
stand trial.  Relying on Dr. Marquit’s findings, trial counsel pursued a defense of
insanity.  Counsel stipulated that Pardo, a former police officer with college
degrees in criminology and business management, was competent to stand trial.
Three court-appointed experts, one a clinical psychologist and the other two
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forensic psychiatrists, evaluated Pardo based on the insanity defense.  These
witnesses, all of whom had substantial experience in conducting mental
evaluations of criminal defendants, also evaluated Pardo for competence to stand
trial.  The three court-appointed experts testified at trial that Pardo was both
competent to stand trial and legally sane.  The defense expert, Dr. Marquit,
testified that Pardo was competent to stand trial but legally insane.
Pardo testified in the guilt phase of the trial against the advice of counsel.
Pardo insisted that he was sane and acknowledged that he killed all nine victims.
He testified that all nine victims were drug dealers who had no right to live.  In
cross-examination of Pardo and argument to the jury, the State asserted that Pardo
himself was involved in drug trafficking and that his motive for at least some of the
murders was to take the victims’ property or money.  The State argued further that
not all the victims were drug dealers; that one, Michael Millot, was killed because
he was a confidential informant, and two, Sara Musa and Fara Quintero, were
killed because they took money from Pardo to buy a videocassette recorder but
failed to do so.
The jury found Pardo guilty of nine counts of first-degree murder and
recommended the death penalty by votes ranging from eight-to-four to ten-to-two.
The trial court found one aggravating circumstance as to each murder:  that it was
committed in a cold, calculated, and premeditated manner without moral or legal
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justification.  The court also found a second aggravating circumstance as to two
murders.  The court found that the murder of purported drug informant Millot was
for the purpose of hindering or disrupting the exercise of a government function,
and that the murder of Mario Amador was for pecuniary gain.  The trial court
found the statutory mitigating factors that Pardo had no significant criminal history
and committed the killings while under an extreme mental or emotional
disturbance.  The sentencing order also reflects that the trial court considered as
nonstatutory mitigation that Pardo had served in the military, that he had once
saved a child’s life, and that he had his family’s love and affection.  The trial court
sentenced Pardo to death on each of the nine murder counts.
Pardo raised five issues on direct appeal:   (1) the trial court erred in not
ordering a competency hearing; (2) the State did not carry its burden of proving he
was sane when he committed the crimes; (3) prosecutorial misconduct in closing
argument necessitated a mistrial; (4) none of the aggravating circumstances was
proved; and (5) the trial court erred in declining to find the statutory mitigator that
Pardo could not appreciate the criminality of his conduct or was seriously impaired
in his ability to conform his conduct to the requirements of the law.  This Court
rejected each of Pardo’s arguments.  Id. at 79-80.  In the State’s cross-appeal, we
determined that the trial court erred as to the seven murders in the final four
episodes when it rejected the aggravating factor of prior capital felony conviction
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and found the statutory mitigator of no significant history of prior criminal activity.
Id. at 80-81.  Thus, Pardo’s death sentences were supported by three aggravating
circumstances as to one murder, two aggravating circumstances as to seven
murders, and one aggravating circumstance as to one murder, weighed against one
statutory mitigating circumstance and several nonstatutory mitigating
circumstances.  This Court found Pardo’s sentence to be constitutionally
proportional, and affirmed both the convictions and death sentences.  Id. at 81.
The United States Supreme Court denied certiorari.  Pardo v. Florida, 500 U.S. 928
(1991).
Pardo filed a motion to vacate his convictions and sentences, raising eleven
issues.1  In a supplemental motion, Pardo raised three additional issues.2  The trial
1.  The issues raised in Pardo’s 3.850 motion concerned (1) the trial court’s
denial of public records requests; (2) matters relating to trial that Pardo claims
denied him an “adversarial testing,” specifically (a) an alleged conflict of interest
by trial counsel, (b) the State’s withholding of videotapes of a police interview
with State witness Carlo Ribera, (c) trial counsel’s failure to seek suppression of
evidence from search warrants, (d) trial counsel’s failure to seek severance of some
of the first-degree murder counts, (e) trial counsel’s introduction of evidence that
Pardo identified with Adolph Hitler, collected Nazi memorabilia, and said he
worshipped the devil, (f) undisclosed and newly discovered evidence concerning
the lead detective in the case, (g) trial counsel’s failure to adequately investigate
and challenge Pardo’s guilt on two of the murders, (h) trial counsel’s failure to
request a competency determination, (i) trial counsel’s failure to request a change
of venue, and (j) trial counsel’s failure to investigate the underlying medical cause
of Pardo’s alleged insanity and incompetence; (3) Pardo’s competence to stand
trial; (4) the adequacy of evaluations by mental health professionals who examined
Pardo regarding his insanity defense; (5) prohibitions on juror interviews; (6) the
propriety of the state’s closing argument and defense counsel’s failure to object to
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court granted an evidentiary hearing on three issues:   (1) whether the State violated
Brady v. Maryland, 373 U.S. 83 (1963), in failing to provide defense counsel an
eight-hour videotaped statement by Carlo Ribera, (2) whether Pardo’s trial counsel
had a conflict of interest, and (3) whether counsel was ineffective in failing to
move to sever the counts of first-degree murder into separate trials.
Two witnesses testified during the two-day hearing:  Richard Seres, a film
producer, and Ronald Guralnick, Pardo’s trial counsel.  Seres’ testimony concerned
a conflict of interest claim arising from Guralnick’s contacts with Seres, which
Pardo does not raise in this appeal.
In a written order issued after the evidentiary hearing, the trial court denied
Pardo’s motion for postconviction relief on all grounds.  Pardo appeals, raising
these issues:                                                                            (1) the trial court’s denial, without an evidentiary hearing, of his
claims regarding inadequate expert mental health evaluations; (2) the denial,
without an evidentiary hearing, of the claim that trial counsel was ineffective in
waiving severance of counts; (3) the Brady issue; and (4) the denial of his
it; (7) limitation of cross-examination of Carlo Ribera; (8) alleged error under
Caldwell v. Mississippi, 472 U.S. 320 (1985); (9) various attacks on the
constitutionality of the death sentences; (10) the adequacy of instructions on
aggravating circumstances; and (11) alleged cumulative error.
2.  The supplement concerned (1) the constitutionality of the death sentences
under Ring v. Arizona, 536 U.S. 584 (2002); (2) newly discovered evidence of
Garcia’s plea bargain on four murders after being acquitted of a fifth; and (3)
nondisclosure of Garcia’s plea agreement.
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ineffective assistance claim regarding failure to seek severance of counts.3  Pardo
has also filed a petition for a writ of habeas corpus, raising claims of ineffective
assistance of appellate counsel and denial of a proper direct appeal because of
omissions in the record.
POSTCONVICTION APPEAL
I.  Pardo’s Competence to Stand Trial
Pardo asserts that the trial court erred in denying an evidentiary hearing on
his claims that he was incompetent to stand trial, that the expert witnesses who
found him competent conducted inadequate mental health evaluations, and that
trial counsel was ineffective in failing to request a competency hearing or
investigate the cause of Pardo’s alleged insanity and incompetence.
We agree with the trial court that Pardo’s claims that he was incompetent to
stand trial and that he received inadequate expert evaluations are procedurally
barred.  Pardo’s assertion that he was tried while incompetent in violation of due
process of law is merely a variant of his failed argument on direct appeal that the
trial court should have ordered a competency hearing sua sponte.  See generally
Medina v. State, 573 So. 2d 293, 295 (Fla. 1990) (“[I]t is inappropriate to use a
3.  Pardo also appeals the denial of his public records requests.  Having
carefully considered the arguments of the parties on this claim, we conclude that
Pardo has not been denied his constitutional or statutory rights to public records,
and affirm on this issue without further discussion.
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different argument to relitigate the same issue.”).  In rejecting this claim on direct
appeal, we stated:
The court-appointed experts examined Pardo, found him to have been
sane, and also determined that he was competent to stand trial.  Thus,
not only was there no reason for the court to have ordered a
competency hearing, but also there was no prejudice to Pardo, as the
hearing would not have benefited him.
Pardo, 563 So. 2d at 79.  Further, Pardo’s assertion that the psychological
evaluations we relied upon for this conclusion were performed incompetently
could have been raised on direct appeal.  See Rodriguez v. State, 919 So. 2d 1252,
1267 (Fla. 2005); Marshall v. State, 854 So. 2d 1235, 1248 (Fla. 2003).
We reject Pardo’s attempt to avoid the procedural bar by relying on the
diagnosis of a thyroid and hormonal disorder that was made after he was sentenced
but allegedly rendered him incompetent to stand trial.  Like the performance of
counsel, the competence of an expert’s assistance should be evaluated from the
perspective of the circumstances in which it was conducted, free of “the distorting
effects of hindsight.”  Strickland v. Washington, 466 U.S. 668, 689 (1984).  From
this perspective, the evaluations of Pardo were not so deficient that he was denied
his due process right to competent expert assistance under Ake v. Oklahoma, 470
U.S. 68 (1985).
Pardo’s assertion that he was incompetent to stand trial is also the basis for
two claims of ineffective assistance of trial counsel, both of which were summarily
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denied.  First, Pardo asserts that counsel should have requested a competency
hearing.  In summarily rejecting this claim, the trial court again relied on this
Court’s determination on direct appeal that the trial court had no reason to hold a
competency hearing and that the hearing, if held, would not have benefited Pardo.
The record conclusively demonstrates that Pardo is not entitled to relief on
this claim.  As noted above, two forensic psychiatrists and two clinical
psychologists concluded that Pardo was competent to stand trial.  They explained
their conclusions in terms consistent with the standards for competency set out in
Dusky v. United States, 362 U.S. 402, 402 (1960), and Florida Rule of Criminal
Procedure 3.211(a)(2):  sufficient present ability to consult with counsel plus a
rational and factual understanding of the pending proceedings.  In the direct
appeal, this Court recognized that in light of the experts’ conclusions that Pardo
was competent, there was no reason for the trial court to order a competency
hearing.  Pardo, 563 So. 2d at 79.  For the same reason, trial counsel acted well
within the wide range of reasonable professional assistance in declining to request
that the trial court make a competency determination.
On this issue, this case is similar to Mason v. State, 489 So. 2d 734 (Fla.
1986).  There, this Court remanded for an evidentiary hearing on whether evidence
of the defendant’s mental history discovered after trial would have changed the
experts’ conclusion that he was competent.  However, we rejected Mason’s related
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claim that counsel was ineffective in failing to request a competency hearing.  We
ruled that counsel had no duty to request a competency hearing after receiving
reports from three psychiatrists finding the defendant competent.  Id. at 735-36.
Here, as in Mason, at the time of trial counsel “lacked any evidence indicating the
need for such a procedure.”  Id. at 736.  The unanimous opinions of the mental
health experts in this case left counsel no basis on which to seek a competency
determination.  Accordingly, we find neither deficient performance nor prejudice
in counsel’s decision not to seek a hearing on Pardo’s competency.  We thus affirm
the trial court’s denial of relief on this claim.
Pardo further claims that counsel was ineffective in failing to alert the
mental health experts to symptoms such as weight gain and hair loss that might
have led them to diagnose Pardo’s thyroid and hormonal disorder.  In denying this
claim, the trial court stated that “[i]f a medical doctor did not diagnose a physical
disorder, it cannot be reasonably said that counsel was ineffective in failing to
further investigate the cause of Defendant’s insanity.”
As the United States Supreme Court cautioned in Strickland, “[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.”   466 U.S. at 689.  From counsel’s perspective at the time he was preparing
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to defend Pardo, and without the distorting effects of hindsight, an investigation
into any physical cause of Pardo’s possible incompetence would not have been
warranted.  The tests for both insanity and incompetence focus on a defendant’s
thought processes and mental function rather than on physical conditions that
might affect a defendant’s mental function.  Patton v. State, 878 So. 2d 368, 375
(Fla. 2004) (stating test for insanity in Florida); Fla. R. Crim. P. 3.211(a) (stating
test for competency to stand trial).  Rule 3.211(b), which concerns recommended
treatments of incompetent defendants, in subdivision (1) requires experts to report
on “the mental illness or mental retardation causing the incompetence” but not on
physical illness.  Thus, counsel, like the four mental health experts who evaluated
Pardo, appropriately focused not on symptoms indicating a physical illness but on
Pardo’s mental functioning--his comprehension and ability to reason.
We distinguish Peede v. State, 748 So. 2d 253 (Fla. 1999), which involved a
similar claim.  In Peede, this Court reversed the summary denial of a
postconviction motion asserting that trial counsel was ineffective in failing to assist
a court-appointed psychiatrist and provide the psychiatrist important background
information.  Id. at 258-59.  Peede alleged that the court-appointed expert was not
provided hospital or medical records that were available and did not interview
anyone familiar with the defendant’s personal history.  Id. at 258.  The necessity
for an evidentiary hearing rested largely on Peede’s assertion that his “serious and
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preexisting mental illness” demonstrated by these records went undiscovered and
could have affected the competency evaluation conducted by the court-appointed
mental health expert.  Id. at 259.  In contrast, Pardo has not pointed to any existing
medical records which, if shown to the mental health experts, would have changed
their conclusions that Pardo was competent to stand trial.  Instead, Pardo’s claim
rests on observations of physical symptoms which, as the trial court pointed out,
did not indicate to a medical doctor a physical disorder bearing on Pardo’s
competency or sanity.
Thus, Pardo’s counsel did not render constitutionally deficient performance
in failing to alert the experts to a condition for which physical symptoms first
appeared while Pardo was detained pending trial, and that was not diagnosed until
after Pardo was convicted and sentenced.  We affirm the summary denial of relief
on this claim.
II.  Trial Counsel’s Failure
to Present an Alibi for Two Murders
Pardo asserted below that trial counsel was ineffective in failing to
investigate and present an alibi for the murders of Sara Musa and Fara Quintero.
Pardo claimed that his wife was the source of the alibi, “which could have
demonstrated that Mr. Pardo was nowhere near the scene of the murders.”  The
motion contained no other details of the facts supporting the alibi.  In denying the
claim without an evidentiary hearing, the trial court noted that Pardo “does not
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allege what the alibi was or how the alibi could have changed the probability that
he [would] be convicted.”  The trial court also observed that even if Pardo’s wife
had provided an alibi, Pardo “cannot now show that a different result would have
been reached or show he was prejudiced.”
We affirm on both grounds relied on by the trial court.  First, Pardo’s claim
was insufficiently pled.  In Jacobs v. State, 880 So. 2d 548 (Fla. 2004), we
concluded that the petitioner set out a facially sufficient claim because he
“specifically identified the alibi witnesses, stated the substance of their exculpatory
evidence, and averred that they were known to counsel.”  Id. at 553.  Here, the
motion did not factually describe how Pardo’s wife would have supported an alibi
beyond stating that she would have demonstrated that he was “nowhere near the
scene of the murders.”  Thus, this claim was insufficiently pled.
The trial court also concluded that Pardo did not show prejudice.  We agree
that the claimed alibi does not undermine judicial confidence in the convictions on
the counts involving Musa and Quintero.  In Jacobs we stated:
[A] claim of ineffectiveness in failing to present important
exculpatory evidence cannot be resolved on the basis of the mere
existence of conflicting evidence in the record. Rather, the record
evidence must conclusively rebut the claim if the claim is to be
resolved without a hearing. . .
However, the mere existence of evidence of guilt is insufficient
to conclusively rebut a claim of ineffectiveness in failing to present
evidence of innocence in the form of known and available alibi
witnesses.
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Id. at 555.
In this case, compelling evidence established Pardo’s guilt of the Musa and
Quintero murders, capped by his own admission to the jury that he murdered the
two women as well as the other seven victims.  Thus, the record conclusively
refutes any claim that Pardo was prejudiced by the absence of testimony by his
wife that he was elsewhere when two of the nine murders in this case occurred.
We therefore affirm the summary denial of relief on this claim.
III.  Brady Issue:  Nondisclosure of
Videotaped Interview of State Witness
Following an evidentiary hearing, the trial court denied Pardo’s claim that
the State’s failure to disclose videotapes of a police interview with State witness
Carlo Ribera required a new trial.  The trial court concluded that the videotapes did
not undermine confidence in Pardo’s convictions and death sentences for several
reasons.  First, the defense investigation and three-day deposition of Ribera
revealed ample evidence that he was a liar whose testimony should not be taken at
face value.  Second, defense counsel testified only that he might have used the
videotapes to impeach Ribera, depending on the circumstances.  Third, Pardo
testified in the guilt phase that he committed each of the murders, negating any
prejudice.  Finally, the defense at trial was insanity, an affirmative defense that
admits the acts alleged.  We agree that although the State suppressed potentially
favorable evidence in failing to disclose the videotapes, the record conclusively
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demonstrates that judicial confidence in the verdict is not undermined by the
nondisclosure.
To establish a Brady violation, a defendant must prove (1) that evidence
favorable to the accused because it is exculpatory or impeaching, (2) was
suppressed by the State, either willfully or inadvertently, (3) resulting in prejudice
to the defense.  Way v. State, 760 So. 2d 903, 910 (Fla. 2000).  The determination
whether a Brady violation has occurred is subject to independent appellate review.
Id. at 913; Cardona v. State, 826 So. 2d 968, 973 (Fla. 2002).  Prejudice under a
Brady claim, like an ineffective assistance claim, is established if the nondisclosure
undermines confidence in the conviction.  Id.
In this case, the State stipulated below that it failed to disclose to defense
counsel the videotapes of the May 6, 1986, police interview of Ribera, establishing
the second prong of Brady.  The evidentiary hearing and trial court ruling centered
on whether the videotapes were impeaching and whether they put the entire case in
such a different light as to undermine confidence in the convictions.
Before we address Pardo’s specific arguments on this issue, we distinguish
this case from the case of Pardo’s codefendant, in which we ruled that the
nondisclosure of the Ribera videotapes required a new trial.  See Garcia v. State,
816 So. 2d 554 (Fla. 2002).  Pardo’s trial testimony admitting the killings places
the nondisclosure in a far less prejudicial light than in Garcia’s case.  In fact, the
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exclusion of Pardo’s testimony provided a second basis for reversal of Garcia’s
convictions.  Id. at 567.  Other evidence also strongly implicated Pardo.  The State
introduced evidence that a projectile removed from Pardo’s foot was fired from
one of the two guns used to kill Ramon Alvero and Daisy Ricard.  In addition, the
State produced evidence that a spent casing from Pardo’s closet was fired from the
same gun as a casing found under Alvero’s body.  Also, blood and bullets in
Pardo’s car connected him to the murder of Millot.  Finally, police found in
Pardo’s apartment a diary with Pardo’s handwriting and newspaper clippings
pointing to the murders.  In contrast, little physical evidence linked Garcia to the
murders.  Id. at 563.  Accordingly, the reversal in Garcia does not compel the same
result here.
Nonetheless, Pardo asserts that access to the videotapes of the eight-hour
interview with Ribera would have altered the course of Pardo’s trial in several
ways, undermining confidence in the outcome.  Pardo asserts that (1) defense
counsel would have been able to successfully move to suppress the evidence
acquired during execution of a search warrant at Pardo’s home which relied upon
Ribera’s information for probable cause; (2) counsel could have impeached Ribera
with greater success at trial, eliminating Pardo’s motivation to testify and admit the
killings; and (3) counsel could have better prepared for trial and adopted different
strategies, perhaps forgoing the decision to rely on a defense of insanity.
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A. Suppression of Evidence
Ribera was the confidential source identified in the affidavit filed with the
application for a warrant to search Pardo’s residence.  Ribera’s statements under
polygraph examination and verification of some of the information he provided
that was not released to the public were the primary sources of probable cause.
Pardo claims that the material in the videotapes would have portrayed Ribera as so
unreliable that trial counsel would have successfully moved to suppress the fruits
of the search.
Initially, we are skeptical of the claim that nondisclosure of material bearing
on the reliability of a search warrant is impeachment material cognizable under
Brady.  Impeachment is an attack on the credibility of a witness.  See § 90.608,
Fla. Stat. (2005).  The validity of an affidavit for a search warrant is determined
not from witness testimony but from the four corners of the affidavit.  Pagan v.
State, 830 So. 2d 792, 806 (Fla. 2002).  If the affidavit creates a substantial basis
for a finding of probable cause on its face, a defendant seeking to suppress the
fruits of the warrant must establish that the affidavit contains statements that were
intentionally false or made with reckless disregard for the truth.  Franks v.
Delaware, 438 U.S. 154, 155-56 (1978); Thorp v. State, 777 So. 2d 385, 391 (Fla.
2000).  In the alternative, the defendant must demonstrate that the affidavit omits
facts with intent to deceive or with reckless disregard for whether the information
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should have been revealed to the magistrate.  Pagan, 830 So. 2d at 897.  If probable
cause does not exist after excising such falsehoods or adding the material omitted,
evidence acquired thereby must be suppressed.  Thus, falsehoods and omissions
from an affidavit used to obtain a search warrant can invalidate the initial probable
cause determination, but they are not impeachment material in the sense of facts
bearing on the credibility of a testifying witness.
We need not decide whether the nondisclosure of evidence bearing on the
validity of a search warrant is cognizable under Brady because the nondisclosure
of the Ribera videotapes did not result in prejudice warranting a new trial.  A
determination of prejudice would require us to conclude first that trial counsel
probably would have used the information in the videotapes to file a motion to
suppress, second that the motion would have been granted and crucial evidence
suppressed, and third that confidence in Pardo’s convictions is undermined.  On
the record before us, we cannot reach this ultimate conclusion.
Trial counsel Guralnick stated at the evidentiary hearing that he might have
been able to use the videotapes to show that the police officer interviewing Ribera
did not believe him and that some of Ribera’s knowledge of the crimes came from
media accounts of one of the murders.  However, Guralnick did not review the
videotapes before the evidentiary hearing and thus could not state that the
videotapes would have led him to seek suppression of the fruits of the search
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warrant.  Nor did postconviction counsel make a showing that the videotapes
would or should have led trial counsel to seek suppression of the evidence obtained
via the warrant.  Pardo has not identified in the videotapes any falsehoods or
omissions of the magnitude identified in Franks and Pagan.  Thus he has not
established that had the videotapes been disclosed, a motion to suppress probably
would have been filed.
Second, there is no basis to conclude that a motion to suppress based on the
videotapes would have been granted.  As stated above, none of the material in the
search warrant affidavit meets the standard of materiality set out in Franks and
Pagan—intentional or reckless falsehoods or omissions.  Pardo cites no authority
requiring that all of the information supplied by a source be excised because the
source is generally unreliable, which would be contrary to the focus of the Franks
test on specific falsehoods and omissions.  Further, the affidavit did not rest solely
on information provided by Ribera.  There was also corroboration of some of the
details attributed to Ribera.  Cf. State v. Butler, 655 So. 2d 1123, 1127 (Fla. 1995)
(noting that the United States Supreme Court has repeatedly relied on relevant
corroborating facts known by the police in evaluating an informant’s tip as the
primary basis for probable cause).  On the whole, we find no reasonable
probability that had the videotapes been provided to defense counsel, evidence
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acquired in the search of Pardo’s home would have been ruled inadmissible in
Pardo’s trial.
The final consideration is whether, assuming disclosure of the Ribera
videotapes would have led to suppression of the fruits of the search, the
suppression would render Pardo’s murder convictions and death sentences
unreliable.  This requires an assessment of the weight of both the evidence seized
pursuant to the warrant and the other evidence introduced by the State.  Evidence
taken from Pardo’s apartment pursuant to the search warrant and introduced at trial
included a diary and newspaper clippings that tied him to many of the murders.
However, the State also introduced ample evidence unrelated to either the search or
the portions of Ribera’s trial testimony that were uncorroborated.  For example, a
bullet removed from Pardo’s foot matched projectiles used in the murders of
Ramon Alvero and Daisy Ricard.  Pardo’s fingerprint was found on the wristwatch
of victim Ricard, discovered next to her body.  Further, the palm print of
codefendant Garcia was on a pawn slip for jewelry belonging to victims Musa and
Quintero, pawned the day after their murders.  In addition, Garcia used credit cards
belonging to several victims after their murders.  Finally, much of the physical
evidence corroborated Ribera’s testimony as to what he had seen and heard.
The primary reason exclusion of the items seized from Pardo’s apartment
would not undermine confidence in the outcome is that Pardo insisted on testifying
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that he personally killed all of the nine victims because they were drug dealers.  At
that point only Pardo’s sanity remained in question, and the jury in returning guilty
verdicts rejected the insanity defense.  The assertion by postconviction counsel that
Pardo would not have testified had the videotapes been disclosed and the evidence
suppressed is unsupported speculation.  Pardo’s chief motivation in testifying was
to claim credit for the vigilante killings and refute the State’s suggestion through
Ribera that Pardo was a drug dealer.  Pardo’s reason for testifying appears
unrelated to the incriminating nature of the evidence seized in the search of his
apartment.  This aspect of Pardo’s postconviction claim is addressed in greater
detail below.
B.  Impeachment of Witness at Trial
Ribera’s trial testimony incriminated Pardo in all nine murders.  Ribera
testified that Pardo described how he had killed many of the victims and showed
Ribera diary entries, newspaper clippings, and Polaroid photographs substantiating
his claims.  Ribera also testified that Garcia, Pardo’s codefendant, told him how
Pardo had killed victims Musa and Quintero.
Postconviction counsel has identified a number of statements in the
videotapes which trial counsel could have used to impeach Ribera.  However, none
of these statements, individually or collectively, undermine confidence in the
outcome of the proceedings.
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Initially, as noted by the State, on close inspection several of Ribera’s
statements, on trivial as well as material facts, are not inconsistent with his trial
testimony.  Alleged inconsistencies about when Ribera was shown photographs of
the murder scenes by Pardo, whether he was allowed in Pardo’s home, and where
he had seen credit cards belonging to the victims are not borne out by the record.
Of greater significance, the videotaped statements are not inconsistent with
Ribera’s trial testimony that Garcia and Pardo played separate roles in their joint
enterprise.  In the police interview, Ribera described Pardo as the “killing
machine” and Garcia as the brains of the drug dealing who, nonetheless, would not
do anything without Pardo’s approval.  In his trial testimony, Ribera clearly
identified Pardo as the one who killed the victims and Garcia as the one who
depicted the killings as robberies of drug dealers.
In sum, even without consideration of the additional evidence against Pardo,
there are no inconsistencies in the videotapes of Ribera’s police interview that put
the case in such a different light as to undermine judicial confidence in the verdict.
Nor, assuming trial counsel could expose the jury to evidence of coaching during
the interview or indications that Ribera was suffering from a drug hangover, as
Pardo alleges, would confidence be undermined.  Ribera admitted during cross-
examination that he had been a gun-toting drug dealer at the time of his
interactions with Pardo and Garcia.
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The diary, newspaper clippings, and ballistics and serology evidence against
Pardo, discussed above, buttress our conclusion that material in the videotapes
does not undermine confidence in the verdicts.  As trial counsel Guralnick testified
during the evidentiary hearing, “[r]easonable doubt was certainly not viable in this
particular case.”  Pardo does not press a theory of innocence supported by the
undisclosed impeachment material other than the general reasonable doubt theory
rejected by trial counsel.  As noted above, Pardo’s jury confession also serves to
distinguish this case from that of his codefendant Garcia on the effect of the
nondisclosure of the Ribera videotapes.4  Pardo’s in-court confession in his own
trial negates any prejudice from the nondisclosure of the Ribera videotapes.
The claim by postconviction counsel that Pardo would not have testified had
Ribera been impeached with the videotapes is addressed below.
C.  Defense Preparation and Strategy
Pardo argues that disclosure of the Ribera videotapes would have changed
the defense’s investigation and planning for the trial and enabled defense counsel
to successfully discourage Pardo from testifying and admitting that he committed
4. Garcia’s first set of four first-degree murder convictions was reversed
because the offenses were erroneously consolidated for trial.  Garcia v. State, 568
So. 2d 896, 901 (Fla. 1990).  On remand, Garcia was convicted of two counts of
first-degree murder and again sentenced to death.  We reversed on two grounds:
the nondisclosure of the Ribera videotapes and the exclusion of Pardo’s testimony
taking sole responsibility for the murders in his trial, each resulting in harmful
error.                                                                                 816 So. 2d at 560-67.
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the murders.  These assertions are highly speculative.  Pardo has not established
that, given the physical and testimonial evidence against him, the Ribera
videotapes would have materially changed trial counsel’s preparations or the
course of the trial.  Further, the claim of postconviction counsel that Pardo took the
witness stand to rebut Ribera’s testimony on Pardo’s role in the killings is contrary
to Pardo’s own testimony.  Pardo sharply challenged Ribera’s testimony that Pardo
benefited financially from the murders, but did not contest Ribera’s testimony in
general or his implication of Pardo in the nine murders in particular.  Ribera
testified that Pardo killed Amador and Alfonso “to rip them off and get the cocaine
and sell it for money,” killed Robledo and Ledo “to rip them off for two or three
kilos of cocaine,” and killed Musa and Quintero for $50 and “respect.”  On cross-
examination, the following exchange occurred:
Q  He [Pardo] was proud of killing these people, wasn’t he?
A  He was making money.
In his testimony, Pardo explained why he chose to testify, against his
lawyer’s advice:
Q  Why is it so important for you to have these ladies and gentlemen
hear your version of the story?
A  Because what Carlo Ribera said was self-serving and is completely
wrong and I want my opportunity to tell my side of the story.
Q  Mr. Pardo, both Mr. Waskman and Ms. Weintraub [the
prosecutors] have tried to make special note that you killed these
people because you were a drug dealer and that you were involved in
drug trafficking.
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A  I applaud the State Attorney’s Office in the preparation of their
case.  It was flawless, it was beautiful with the minor exception of
why I killed these people.
At no time did anybody indicate I was a drug dealer.  At no
time in my life have I ever been a drug dealer . . .
Q  Have you been involved in drug transactions with any of the
victims in this case?
A  Not drug transactions to benefit myself, no.
Q  You admit to killing all of the nine people that they have set forth
in this trial?
A  Yes, I do, of course I did.
Q  Mr. Pardo, why did you kill these people, and I don’t mean one, I
mean each and every one?
Q  I killed each and every one of these people because they were drug
dealers.
As stated above, Pardo maintained that he was not guilty of murder because
he considered his victims to be drug dealers who had forfeited the right to live.  He
did not testify at the postconviction evidentiary hearing to support postconviction
counsel’s assertion that he would not have taken the witness stand at trial had
Ribera been discredited through his statements in the police videotapes.  Therefore,
we find no reasonable probability that disclosure of the videotapes of the Ribera
interview would have altered the investigation, preparation, or presentation of the
defense’s case, and certainly not to a level undermining confidence in the
convictions.  Accordingly, we affirm the denial of relief on this claim.
IV.  Waiver of Severance of Counts
Pardo asserted below that trial counsel was ineffective in waiving a
severance of the various murder, robbery, and weapons counts into two or more
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trials.  Relying on the testimony of trial counsel during the evidentiary hearing, the
trial court concluded that counsel acted reasonably when he opted to seek an
acquittal on the defense of insanity in a single trial rather than attempt to win
acquittal in each of a series of trials.  In his appeal of the denial of relief on this
claim, Pardo asserts that trial counsel’s actual reason for forgoing severance was
financial:  counsel could not afford to represent Pardo in numerous trials on what
he had been paid.  In support of this contention, Pardo points to an unfiled motion
to withdraw claiming financial hardship taken from counsel’s files.  Pardo also
asserts that trial counsel did not testify that “[t]he jury would be more likely to
believe an insanity defense, given the number of victims,” as the trial court found.
The State responds that trial counsel’s strategy was reasonable under the
circumstances, that the trial court recognized at the time of trial that the strategy
was sound, and that the defense expert who testified for Pardo at trial supported the
view that trying the nine murder counts together buttressed the prospects of
success on the insanity defense.
“[S]trategic decisions do not constitute ineffective assistance of counsel if
alternative courses have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.”  Occhicone v. State, 768 So.
2d 1037, 1048 (Fla. 2000).  In opting to try all of the counts against his client in a
single proceeding, defense counsel made a reasonable strategic decision involving
- 26 -

an informed choice among alternatives.  The record reflects that at the point when
counsel moved to try the counts together, Pardo’s trial had been severed from that
of codefendant Garcia, and counts IX through XIII involving the Musa and
Quintero murders were severed from the other counts against Pardo.  However,
during jury selection for the first trial on six of the murders, trial counsel changed
his position and agreed that counts IX through XIII, as well as the counts involving
the murder of Michael Millot charged in a separate indictment, should also be
included.  The trial court granted the motion, observing that “in view of his
defense, he feels, obviously, and I can see why, it [is] best to try his client on all
counts.” Later, in response to the State’s expression of concern that Pardo may not
have agreed with counsel’s decision, the trial judge noted that he had seen counsel
consult with Pardo.  Guralnick confirmed that he had consulted with Pardo.
In his testimony at the postconviction evidentiary hearing, trial counsel
Guralnick explained his rationale for agreeing to a single trial on all counts:
All of the separate counts of murder that had been filed against him, if
I had tried each of them individually, I mean, his chances of winning
every single one of them with the evidence that they had, you would
have had a better shot at winning the lottery.  So it was my opinion
that with an insanity defense, if they’re all joined in one case, that if
the jury believed that he was insane, then he was a total winner.
The trial court instructed the jury that “[a] person is considered insane when he has
a mental infirmity or disease or defect and because of this condition, he did not
know what he was doing or its consequences or although he knew what he was
- 27 -

doing or the consequences, he did not know it was wrong.”  Dr. Marquit’s
testimony supported the defense’s insanity theory on the rationale that Pardo did
not think it was wrong to kill those he considered to be drug dealers.  Counsel
reasonably could have concluded that the large number of victims demonstrated
the sincerity of this belief and thus the credibility of the insanity defense.
Pardo’s own testimony reinforced the decision to try all of the murder counts
together to support the insanity defense.  He proudly acknowledged killing all nine
victims and opined that his acts were not murders because his victims were drug-
dealing parasites rather than human beings.  In the postconviction evidentiary
hearing, trial counsel stated that although he had advised Pardo not to testify, he
came to believe it might have been a good move because Pardo sounded “crazier
than a bed bug.”
Apart from the unfiled motion to withdraw, there is no support in the record
for the allegation that counsel tried all the counts together for financial reasons.  As
the State points out, fifteen months elapsed between the date of the unfiled motion
to withdraw and counsel’s decision to seek a single trial on all counts.  Asked at
the evidentiary hearing whether something had changed in the interim, counsel
stated that it had, but did not elaborate.  Although the trial record does not reveal a
ruling on the pretrial motion for appointment as a special assistant public defender
filed by Guralnick, several motions for expenses in the record reflect that Pardo
- 28 -

had been declared indigent for purposes of costs.  The suggestion of an ulterior
motive for trial counsel’s strategy is without adequate record support.
Accordingly, Pardo has not demonstrated deficient performance under the
Strickland standard.  Further, there is no indication of prejudice sufficient to
overturn the verdicts for any of the five murderous episodes.  This Court’s
decisions in the direct appeals by Pardo and Garcia establish that the counts were
severable.  See Garcia, 568 So. 2d at 899-91 (reversing conviction for failure to
sever trials by episode); Pardo, 563 So. 2d at 80 (noting that each episode of killing
“was singular, discrete, and only tenuously related, if at all, to the other episodes”).
However, even in the event of severance, Pardo has not shown a reasonable
probability, sufficient to undermine confidence in the outcome, of a different result
in any of the severed trials.  Even without Pardo’s jury confession, the physical and
testimonial evidence against Pardo was strong, as trial counsel acknowledged in
the evidentiary hearing when he stated that he went with the insanity defense
because of the overwhelming evidence of guilt and compared the prospect of
acquittal to winning the lottery.
Having failed to satisfy either prong of a meritorious ineffective assistance
claim, Pardo is not entitled to relief on his assertion that trial counsel failed to
perform as the counsel guaranteed by the Sixth Amendment.  We affirm the trial
court’s denial of relief on this claim.
- 29 -

PETITION FOR WRIT OF HABEAS CORPUS
In his habeas petition, Pardo asserts that appellate counsel was ineffective in
failing to raise several issues in Pardo’s direct appeal: that the trial court erred in
precluding cross-examination of Ribera on prior crimes he admitted committing
but was not charged with, and that the trial court erred in its rulings on several
evidentiary issues preserved by trial counsel.
This Court’s standard for evaluating claims of ineffective assistance of
appellate counsel in habeas corpus proceedings mirrors the standard set out in
Strickland for trial counsel ineffectiveness.  See Rutherford v. Moore, 774 So. 2d
637, 643 (Fla. 2000).  This Court said in Rutherford:
[T]his Court’s ability to grant habeas relief on the basis of appellate
counsel’s ineffectiveness is limited to those situations where the
petitioner establishes first, that appellate counsel’s performance was
deficient because “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, that the petitioner was prejudiced because appellate counsel’s
deficiency “compromised the appellate process to such a degree as to
undermine confidence in the correctness of the result.”
Id. (quoting Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000)).
Addressing a claim that appellate counsel was ineffective in failing to
contest trial court rulings on evidentiary issues, this Court has stated:
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
- 30 -

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.
Jones v. Moore, 794 So. 2d 579, 583 (Fla. 2001).  In Strickland, the United States
Supreme Court stated that if the defendant cannot establish one prong of an
ineffective assistance claim, the court need not address the other.   466 U.S. at 697.
Accordingly, in Valle v. Moore, 837 So. 2d 905, 910-11 (Fla. 2002), this Court
denied a claim of ineffective assistance of appellate counsel upon concluding that
no prejudice ensued from the lack of an appellate challenge to the admission of a
gun because the ruling, if error, was harmless.5
Such is the case here.  Our confidence in the verdicts of guilt and sentences
of death would not be undermined had appellate counsel successfully raised each
of the issues specified by postconviction counsel.  Both individually and
cumulatively, the errors would have been harmless beyond a reasonable doubt.  As
detailed above, the jury received evidence of highly incriminating notations in
Pardo’s diary and possession of newspaper clippings, ballistics and blood evidence
linking Pardo to many of the murders, and Ribera’s testimony that Pardo boasted
5.  We have cautioned trial courts conducting evidentiary hearings on
ineffective assistance claims that addressing only one of the Strickland prongs risks
avoidable delay and duplication of effort if the court’s ruling on that prong is
overturned.  See Henry v. State, 31 Fla. L. Weekly S342, S345-46 (Fla. May 25,
2006); Grosvenor v. State, 874 So. 2d 1176, 1182-83 (Fla. 2004).  These concerns
do not have the same force on appellate ineffectiveness claims, which do not
involve evidentiary hearings.
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about most of the killings.  Further, none of the evidentiary rulings specified in this
claim undermine the force of Pardo’s confession to the jury that he intentionally
killed each of the nine victims.  Accordingly, Pardo was not prejudiced by
appellate counsel’s failure to raise issues concerning evidentiary rulings that were
harmless beyond a reasonable doubt.
Finally, Pardo claims appellate counsel was ineffective in failing to ensure a
complete record.  He is not entitled to relief because he has not identified any
errors occurring during the proceedings that were not transcribed.  See Griffin v.
State, 866 So. 2d 1, 21 (Fla. 2003) (denying habeas relief to petitioner who “has
not pointed to any errors that occurred during the portions of the proceedings that
were not transcribed”); Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1993)
(rejecting claim of ineffective assistance of appellate counsel based on missing
record because the defendant “point[ed] to no specific error which occurred”).
Accordingly, we reject this claim as well.
CONCLUSION
Having found no reversible error in the trial court’s denial of Pardo’s motion
for postconviction relief, we affirm its ruling.  Having found no merit in the points
raised in Pardo’s habeas petition, we deny the petition.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and
BELL, JJ., concur.
- 32 -

Two Cases:
An Appeal from the Circuit Court in and for Dade County,
Stanford Blake, Judge - Case No. F86-12910A and F14719A
And an Original Proceeding - Habeas Corpus
Neal A. Dupree, Capital Collateral Regional Counsel, Leor Veleanu and Lucrecia
R. Diaz, Assistant CCR Counsel - South, Fort Lauderdale, Florida,
for Appellant/Petitioner
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee/Respondent
- 33 -

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