SC07-1375 – Victor Caraballo v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc07-1375

Case Date: 06/24/2010

Plaintiff: SC07-1375 – Victor Caraballo

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC07-1375
VICTOR CARABALLO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 24, 2010]
PER CURIAM.
This case is before the Court on appeal from a judgment of conviction of
first-degree murder and a sentence of death.  We have jurisdiction.  See art. V,
§ 3(b)(1), Fla. Const.  For the reasons explained below, we affirm Caraballo‘s
convictions; however, we reverse his death sentence and remand this case to the
trial court for a new penalty phase.
OVERVIEW
Victor Caraballo (Caraballo) was convicted of the 2002 first-degree murder,
kidnapping, robbery, and sexual battery of Ana Maria Angel (Angel).  Caraballo
was also convicted of the attempted first-degree murder, robbery, and kidnapping

of Nelson Portobanco (Portobanco).  At the conclusion of the penalty phase, the
jury recommended by a vote of nine to three that Caraballo be sentenced to death
for the murder of Angel.  We affirm Caraballo‘s convictions and sentences as to all
crimes except for the death sentence for the murder of Angel.  As to the death
sentence, because of error that occurred during the penalty phase, we reverse
Caraballo‘s death sentence and remand this case to the trial court for a new penalty
phase.  We first discuss the facts of the murder and the investigation as well as the
procedural posture of the case.  Next, we discuss the guilt phase issues raised by
Caraballo.  We then turn to the penalty phase issue which dictates reversal of
Caraballo‘s death sentence.
Facts of the Murder
The evidence presented at trial established that on Saturday, April 27, 2002,
Angel and her boyfriend Portobanco, both high school students, went on a dinner
date.  After dinner, the two went for a walk on Miami Beach that lasted about
thirty minutes.  Around 12:30 a.m. on April 28, they decided to leave the beach
and go home.  As Angel and Portobanco walked to their car, they were accosted at
gunpoint and forced into the rear cab of a white Ford F-150 pickup truck by a
group of five men that included Victor Caraballo, Joel Lebron, Hector Caraballo,
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Cesar Mena, and Jesus Torres Roman.1  The group had traveled from Orlando to
Miami Beach on the evening of April 27 in the truck which was rented in Orlando
on the morning of April 27.  The evidence presented at trial established that Mena
was the driver and Caraballo was the front seat passenger.  Hector Caraballo,
Lebron, and Roman sat in the rear cab of the truck with Angel and Portobanco.
While in the truck, Angel and Portobanco were robbed of their belongings which
included Angel‘s purse, cell phone, Florida identification card, automatic teller
machine (ATM) card, various items of jewelry, and Portobanco‘s wallet and cell
phone.  After forcing Angel to reveal her personal identification number (PIN), the
robbers used her ATM card to withdraw money from an ATM and to purchase
gasoline.
Thereafter, the truck entered Interstate 95 and proceeded in a northerly
direction with Angel and Portobanco trapped in the rear cab.  At one point,
Portobanco was told to kiss Angel and then to touch her in an intimate manner.
When Portobanco refused, he was pushed onto the floorboard.  Angel was then
brutally gang-raped by the other three occupants of the rear cab.  Thereafter,
Caraballo exclaimed that it was his turn, climbed into the back seat, and sexually
battered Angel.
1.  Hector Caraballo is the brother of the appellant, Victor Caraballo.
Throughout this opinion, Victor Caraballo will be referred to as ―Caraballo.‖  His
brother will be referred to as ―Hector Caraballo.‖
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After the sexual attacks ended, the truck continued traveling north and then
stopped alongside the interstate.  Portobanco was forced out of the truck and down
an embankment.  There, he was repeatedly stabbed and left for dead.  One of
Portobanco‘s multiple stab wounds was located extremely close to an artery.
Thereafter, the truck continued to travel north on the interstate for several more
miles with Angel still trapped inside.  When the truck stopped again, Angel was
forced out of the truck and taken to a retaining wall alongside the interstate.  There,
Angel was forced to her knees and was shot once in the back of her head killing
her instantly.
After brutally stabbing Portobanco and fatally shooting Angel, the group of
five headed back home to Orlando during the early morning hours of April 28.
The rental truck was returned to the rental agency in Orlando that same day.
The Initial Investigation and Encounter with Caraballo
Portobanco, who did not succumb to his injuries, made his way to the side of
the road and summoned help.  There, a passerby stopped and emergency personnel
were called.  Portobanco was taken to a Miami hospital where he talked with law
enforcement officers while being treated.  Portobanco told the officers about the
kidnapping and explained that when he last saw Angel, she was alive.  After law
enforcement officers obtained the numbers for both Angel‘s and Portobanco‘s cell
phones, a call was traced from one of the phones to a residential telephone number
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at the Hawthorne Village Apartments in Orlando.  The phone number was linked
to Hector Caraballo.
Given that information, during the morning of April 28, local and statewide
law enforcement officers set up a staging area in south Orange County in the
vicinity of the Hawthorne Village Apartments.  Although the officers did not locate
Hector Caraballo, the Hawthorne Village staff informed them that a person named
Victor Caraballo was recently a tenant in the complex.  Apartment staff told law
enforcement that Caraballo had been evicted and that his apartment should be
vacant.
Law enforcement officers went to the apartment formerly rented by
Caraballo and knocked on the door.  Hawthorne Village staff, who accompanied
the officers to the apartment, discovered that someone placed a new noncompliant
lock on the apartment door.  Despite multiple attempts to get the attention of
anyone who might be inside, no one came to the door.  Thereafter, with the consent
of Hawthorne Village staff, law enforcement officers kicked in the door and
entered the apartment.  Once inside the apartment, they discovered that the door
had been barricaded with a piece of wood and a hydraulic jack, and they
discovered someone who identified himself as Victor Caraballo.
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Statements Made at the Apartment
Caraballo, whose primary language is Spanish, identified himself as
Victor Caraballo and also verified that Hector Caraballo was his brother.  Agent
Francisco Hidalgo, a Spanish-speaking Florida Department of Law Enforcement
(FDLE) agent, was brought to the apartment to speak to Caraballo.  Around 4:10
p.m. on April 28, Caraballo was advised in Spanish of his Miranda2 rights, and
after indicating that he understood his rights, he signed a waiver form printed in
Spanish.  Caraballo acknowledged that he and four others (Hector Caraballo,
Mena, Lebron, and Roman) traveled to Miami Beach the evening before and
robbed a young couple.  Caraballo stated that Portobanco was beaten and left at
some point during the trip back to Orlando, but he claimed that Angel traveled
back to Orlando with the group and that she begged to be let go throughout the trip.
Caraballo admitted to having some of the items belonging to Angel and
Portobanco.  He showed Agent Hidalgo where various items were located in the
apartment, including Portobanco‘s wallet and Angel‘s purse, cell phone, and ATM
card.  In an abundance of caution, Hidalgo also obtained consent from Caraballo to
search the apartment and seize the items.  That evening, Caraballo was taken to the
Orlando FDLE office where he made another statement.
2.  Miranda v. Arizona, 384 U.S. 436 (1966).
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Statements Made at the FDLE Office
Around 10 p.m. on April 28, Caraballo was questioned in the presence of
Miami Beach Police Detective Larry Marrero and FDLE Agent Hidalgo.
Caraballo admitted certain facts regarding the kidnapping, robbery, rape, and
attempted murder, but he did not admit that Angel was shot and killed.
Throughout the evening of April 28 and into the morning of April 29, additional
information was gathered and others in the group of five were brought in for
questioning.  During that time, it was revealed that Angel was murdered and that
her body was left along Interstate 95, several miles from where Portobanco was
stabbed and left for dead.  Using this information, law enforcement located
Angel‘s body.
Caraballo’s Television Interview
Between the time that Caraballo was arrested and put on trial, he participated
in an interview with a local Spanish-language television station.  During the
interview, Caraballo said that he did not anticipate what happened that night
because he and the others were only supposed to go to a discotheque and have fun.
Caraballo also told the interviewer that Angel and Portobanco were violently
forced into the pickup truck and that Lebron had a gun, possibly a .45 caliber or
other type of gun with a magazine.
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Caraballo recalled that Angel pleaded for her life and that Roman bragged
about the impact of the gunshot wound.  Caraballo also pointed to Lebron as the
person who stabbed Portobanco.  Additionally, Caraballo demonstrated how Angel
was shot in the back of her head.  Portions of Caraballo‘s interview were
introduced at trial.3
Caraballo’s Voluntary Confession Letter
Several months after the murder, Caraballo wrote a letter which contained a
―voluntary confession‖ and sent it to the State Attorney‘s Office.  In the
confession, Caraballo said that on April 27 he was at his brother Hector‘s
apartment when Mena, Lebron, and Roman came over.  The group decided to go to
a discotheque in Miami.  Before leaving Orlando, they stopped at Mena‘s home at
about 4:30 p.m. to get money for gasoline and say goodbye to Mena‘s wife.
At 6 p.m. the group left for Miami, stopping on the way to buy orange juice
and vodka.  At approximately 7 p.m., Mena asked Caraballo to drive the rest of the
way to Miami, and Mena would resume driving once they arrived in Miami
because he knew his way around the city.  They arrived at the discotheque at
approximately 10:30 p.m., only to discover that they did not have enough money
for everyone to get in.  The group, according to Caraballo, then devised a plan to
3.  During oral argument on September 2, 2009, Caraballo‘s counsel
revealed that Caraballo granted the television interview without consulting his trial
counsel.
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sneak in the back door and went for a walk on the beach to wait for the club‘s
security guards to be distracted.  Caraballo added that when this plan proved to be
unworkable, Mena, Lebron, and Roman decided that they should rob someone to
get money and credit cards.  Mena told them that he had two guns, a .38 caliber
and a .45 caliber.  Soon thereafter, Roman noticed two people (Angel and
Portobanco) walking on the beach.  Mena, according to Caraballo, suggested that
they rob these two people.  Lebron approached the couple with the .45 caliber and
Roman with a knife and forced them into the truck.  Angel begged Lebron not to
hurt them, and Lebron and the others responded that no one would be hurt as long
as Angel and Portobanco did what they were told.
Mena got in the driver‘s seat and Caraballo got in the front passenger seat.
Lebron, Roman, Hector Caraballo, Angel, and Portobanco were in the rear cab of
the truck.  Angel and Portobanco‘s belongings were taken from them.  Lebron
asked Portobanco about his job, and Portobanco responded that his father, who was
in the construction business, kept all of his money.  The group stopped at a gas
station and Mena asked for the PIN to Angel‘s ATM card.  Caraballo said that he
and Mena went to the ATM and withdrew a total of $160 from Angel‘s account.
Mena also used the card to purchase $35 worth of gas.  Caraballo claimed that he
asked Angel and Portobanco if they knew how to swim and suggested to the others
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that they leave the couple at a river or a canal.  This suggestion, according to
Caraballo, was ignored by the others.
At one point, Lebron told Portobanco to make love to Angel, and
Portobanco refused.  Lebron asked Angel if she had made love before, and Angel
said no.  She told Lebron that when she was eight years old she was sexually
molested twice by her stepfather.  Lebron pointed the pistol at Angel and told her
to take off her panties.  Angel was crying and afraid, but she did as she was
ordered to do.  Lebron then told the group that they were all going to have sex with
Angel.  Lebron raped Angel anally, Roman raped her vaginally, followed by
Hector Caraballo.  Caraballo claimed that he did not penetrate Angel because
Hector Caraballo had AIDS.  Rather, Caraballo said, he masturbated and ejaculated
on Angel.  Caraballo claimed that he was forced to do all of this because Lebron
threatened him.
The truck stopped and Lebron said that they were going to kill Angel and
Portobanco.  Mena told Lebron to take the knife with him.  According to
Caraballo, he got out of the truck and positioned himself between Lebron and
Portobanco and tried to convince Lebron not to kill him or Angel.  Lebron,
however, pushed him out of the way and began to stab and kick Portobanco.
Caraballo said that at one point he told Lebron that Portobanco was dead, even
though he (Caraballo) knew that Portobanco was pretending to be dead.
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Caraballo and Lebron then returned to the truck, and the group kept
traveling.  Angel asked if they killed Portobanco, and Lebron said ―no,‖ but Angel
saw blood on his hands.  According to Caraballo, Angel cried and asked them not
to kill her.  Fifteen minutes later, Mena stopped the truck, and Lebron, Roman, and
Angel got out.  According to Caraballo, Angel screamed for them not to kill her,
but they did not listen.  They took Angel to an area along the interstate shielded by
foliage where Caraballo saw Lebron shoot Angel in the head.
When Lebron and Roman returned to the truck, Roman bragged about the
size of the hole in Angel‘s head.  According to Caraballo, when Lebron remarked
that Angel and Portobanco were not the only ones who would be killed, Caraballo
became very nervous and told Mena to drive.  The group reached Hector
Caraballo‘s house in Orlando about 6 a.m., and Caraballo went to his former
apartment.  Lebron, Mena, and Roman left in the truck to go home.  Caraballo said
that no one manipulated him to write the letter and that the confession was
voluntary.  Aware of the prejudice and the possible sentence, Caraballo offered to
become a witness for the State.  Caraballo‘s written confession was introduced into
evidence at trial.
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PROCEDURAL HISTORY
Caraballo and the four others were each indicted for Angel‘s murder.4  Each
codefendant faced seven counts: first-degree murder of Angel; attempted first-
degree murder of Portobanco; two counts of kidnapping; two counts of armed
robbery; and sexual battery of Angel.5  In April 2007, Caraballo was tried by jury
in a trial separate from his codefendants.  After Caraballo was convicted of all
seven counts, the trial proceeded to the penalty phase.  During the penalty phase,
the State presented Angel‘s mother as a witness.  Caraballo presented testimony
from three family members and two mental health experts.  In addition to evidence
in support of mitigating factors, Caraballo also presented evidence in support of his
claim of mental retardation.  The State then presented rebuttal testimony from two
mental health experts.  At the conclusion of the penalty phase, by a vote of
nine to three, the jury issued its advisory recommendation that Caraballo be
sentenced to death.  The trial court held a Spencer6 hearing where Angel‘s mother
4.  Codefendants Mena and Roman were both tried by jury and sentenced to
life imprisonment.  Roman was under the age of eighteen at the time of the murder.
Mena‘s convictions and sentences were affirmed on direct appeal.  See Mena v.
State, 23 So. 3d 123 (Fla. 3d DCA 2009).  Roman‘s direct appeal is still pending.
Codefendants Lebron and Hector Caraballo are still awaiting trial.
5.  Codefendant Roman was found guilty of all seven counts.  Codefendant
Mena was convicted of six of the seven counts; he was acquitted of the sexual
battery of Angel.
6.  Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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and Caraballo testified.  Following the Spencer hearing, the court sentenced
Caraballo to death.
At sentencing, the court found five aggravating factors: (1) Caraballo was
convicted of a prior violent felony, based on Caraballo‘s contemporaneous
convictions for the attempted first-degree murder, armed robbery, and kidnapping
of Portobanco (great weight); (2) the defendant engaged in robbery, sexual battery,
or kidnapping at the time of the murder (great weight); (3) the murder was
committed to avoid arrest (great weight); (4) the murder was committed for
pecuniary gain (some weight); and (5) the murder was especially heinous,
atrocious, or cruel (HAC) (great weight).
The court then found two statutory mitigating factors: (1) no significant
history of prior criminal activity (little weight); and (2) extreme mental or
emotional disturbance (great weight).
As nonstatutory mitigation, the court found: (1) Caraballo had a deprived
and abusive childhood (some weight); (2) Caraballo lacked a prior criminal history
(no weight because this was already considered as a statutory mitigating factor);
(3) Caraballo was not the shooter (some weight); and (4) Caraballo‘s general
mental health (great weight).
Concluding that Caraballo was not mentally retarded, that sufficient
aggravating factors were present to justify a death sentence, and that the mitigating
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factors did not overcome the aggravating factors, the court sentenced Caraballo to
death.
ANALYSIS
On direct appeal, Caraballo raises nine issues, some of which relate to the
guilt phase and some to the penalty phase of his trial.  In summary, these issues
are: (1) whether the entry into the apartment where Caraballo was found violated
his Fourth and Fourteenth Amendment rights, rendering the fruits of the entry,
search, and seizure inadmissible; (2) whether the interrogation of Caraballo
violated his Miranda rights; (3) whether certain prosecutorial comments were
improper; (4) whether the State‘s victim impact testimony deprived Caraballo of
due process; (5) whether the trial court erred in permitting penalty phase testimony
from an expert appointed to evaluate Caraballo‘s competence to proceed;
(6) whether Florida law prevented Caraballo from establishing mental retardation;
(7) whether Caraballo‘s death sentence violates Ring v. Arizona, 536 U.S. 584
(2002); (8) whether the cumulative effect of errors committed at trial deprived
Caraballo of a fair trial; and (9) whether Caraballo‘s death sentence is proportional.
At the outset, as we are bound to do in every death case, we review this case
to determine whether sufficient evidence existed to justify Caraballo‘s convictions.
We then continue with Caraballo‘s guilt phase claims and proceed to the penalty
phase.
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Sufficiency of the Evidence as to Caraballo‘s Convictions
―In appeals where the death penalty has been imposed, this Court
independently reviews the record to confirm that the jury‘s verdict is supported by
competent, substantial evidence.‖  Davis v. State, 2 So. 3d 952, 966-67 (Fla. 2008)
(citing Fla. R. App. P. 9.142(a)(6)).   ―In determining the sufficiency of the
evidence, the question is whether, after viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.‖  Simmons v. State, 934 So. 2d
1100, 1111 (Fla. 2006) (quoting Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).
Although Caraballo did not expressly challenge the sufficiency of the evidence as
to each of his convictions, we conclude that sufficient evidence was presented at
trial for the jury to find Caraballo guilty of all seven felonies.
The State presented evidence that Caraballo was among a group of five men
who accosted Angel and her companion, Portobanco, at gunpoint and forced them
into a pickup truck.  The men forced Angel and Portobanco to turn over their
belongings, and Caraballo himself admitted to using Angel‘s ATM card.  Further
evidence was presented that Caraballo engaged in forced sexual activity with
Angel, and his own admissions placed him in a position where, although the
evidence suggests that he did not fire the fatal shot, he witnessed the brutal murder
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of Angel and did not intervene.  Caraballo was also present when Portobanco was
stabbed repeatedly and left for dead.
Caraballo‘s own statements place him with the group that evening and
implicate him in each crime committed.  Moreover, multiple items belonging to
both victims were found in the apartment where Caraballo barricaded himself upon
returning to Orlando—where law enforcement found him alone.  Consequently,
there is competent, substantial evidence to support each of Caraballo‘s convictions.
Guilt Phase Claims
Caraballo raises three claims that relate to the guilt phase of his trial.  First,
he contends that the entry into and search of the apartment where he was found and
the seizure of evidence found therein violated his Fourth and Fourteenth
Amendment rights.7  Second, he also claims that certain statements were taken
from him in violation of Miranda.  Third, he claims that the prosecutor engaged in
improper argument.  As we explain below, none of these claims warrant relief.
Fourth Amendment Claim
Caraballo argues that his constitutional protections against unlawful search
and seizure were violated when law enforcement conducted a warrantless entry
7. The Fourth Amendment to the United States Constitution protects against
unlawful searches and seizures and is made applicable to the states by the
Fourteenth Amendment to the United States Constitution.  See Jones v. State, 648
So. 2d 669, 675 (Fla. 1994).
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into and search of the apartment where he was found on April 28.  Consequently,
Caraballo contends, the trial court erred when it denied his motion to suppress
evidence seized from the apartment.  As explained below, we agree with the trial
court‘s conclusion that Caraballo had previously abandoned his interest in the
apartment where he was found to have barricaded himself after the murder of
Angel.    Therefore, Caraballo did not have an expectation of privacy at the time
when law enforcement officers entered and searched the apartment.  In reviewing
the correctness of the trial court‘s ruling on a motion to suppress, we presume the
correctness of ―the trial court‘s determination of historical facts.‖  Welch v. State,
992 So. 2d 206, 214 (Fla. 2008) (quoting Connor v. State, 803 So. 2d 598, 608
(Fla. 2001)).  However, we independently review ―mixed questions of law and fact
that ultimately determine constitutional issues.‖  Id. (quoting Connor, 803 So. 2d at
608).
A ―person who claims the protection of the [Fourth] Amendment [must
have] a legitimate expectation of privacy in the invaded place.‖  Rakas v. Illinois,
439 U.S. 128, 143 (1978).   ―Although warrantless searches and seizures are
generally prohibited by the Fourth Amendment to the United States Constitution
and article I, section 12, of the Florida Constitution, police may conduct a search
without a warrant if consent is given or if the individual has abandoned his or her
interest in the property in question.‖  Peterka v. State, 890 So. 2d 219, 243 (Fla.
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2004).  We have recognized that ―[t]he test for abandonment is whether a
defendant voluntarily discarded, left behind, or otherwise relinquished his interest
in the property in question so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.‖  Branch v. State,
952 So. 2d 470, 476 n.4 (Fla. 2006) (quoting State v. Lampley, 817 So. 2d 989,
991 (Fla. 4th DCA 2002)).  We conclude that Caraballo had no expectation of
privacy in the apartment where he was found.
The evidence presented at the suppression hearing established that in
December 2001, Caraballo signed a ten-month lease for an apartment at the
Hawthorne Village Apartments.  Because he did not pay rent for April 2002, a
three-day eviction notice was posted on the apartment door on April 5.  On
April 10, the apartment maintenance supervisor conducted a walk-through of the
apartment and determined that it had been abandoned.  This information was given
to the apartment manager who then instructed that a vendor‘s lock be placed on the
door in order to allow various vendors access to the apartment for cleaning and
painting.  Shortly before the murder, around April 26, Caraballo returned to the
apartment complex and asked for a key to the new lock so that he could reenter the
apartment to pick up a washer and dryer.  Caraballo told the leasing agent that he
had removed all of his other belongings but needed to return to pick up those final
items.  Although the apartment complex had begun eviction proceedings, the
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court‘s formal judgment of eviction was not final until May 2—four days after the
murder.
In denying Caraballo‘s motion to suppress evidence seized from the
apartment, the trial court‘s order noted several facts.  Among these facts was the
maintenance supervisor‘s observation during the April 10 walk-through that the
apartment appeared abandoned.  The maintenance supervisor found no food or
utensils in the kitchen and no toiletries or towels in the bathroom.  Moreover, there
was no furniture in the apartment, and the closets were empty.  The maintenance
supervisor reported this information to the apartment manager who instructed that
a vendor‘s lock be placed on the door to allow access to people who would work
inside the apartment, such as painters and carpet cleaners.  Moreover, the trial
court noted that Caraballo had to return to the apartment office to request a key to
the apartment so that he could remove a washer and dryer from it.  When Caraballo
requested the key, he also told the leasing agent that he had moved all of his other
belongings from the apartment and was returning to pick up some final items.  The
trial court noted:
Although the purported eviction was not final under Florida
law, the evidence is clear that Victor Caraballo conceded to the
eviction and abandoned the apartment.  His subsequent return to the
apartment without the consent of the management was an act of
trespass that did not confer upon him an expectation of privacy with
respect to the apartment.
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We conclude that the trial court‘s order denying Caraballo‘s motion to
suppress was based on competent, substantial evidence.  Under these facts, we
agree that the lack of a final order of eviction did not mean that Caraballo was a
lawful tenant at the time law enforcement entered the apartment on April 28.
Therefore, we affirm the trial court‘s denial of Caraballo‘s motion to suppress and
conclude that this claim is without merit.  Moreover, because we conclude that no
underlying illegality occurred when law enforcement entered into and searched the
apartment, we reject Caraballo‘s claim that his statements to Agent Hidalgo while
inside the apartment must be suppressed as ―fruit of the poisonous tree.‖8
Additionally, we reject Caraballo‘s claim that law enforcement lacked
probable cause to arrest him for trespassing.  At the time that law enforcement
entered the apartment, they knew that the person last associated with the apartment
(Victor Caraballo) shared the same last name as Hector Caraballo, the individual to
whom a call from the cell phone of one of the victims was linked.  They also knew
that the approved vendor‘s lock to that apartment had been removed from the front
8.  Also, because we agree with the trial court that Caraballo abandoned the
apartment and had no legitimate expectation of privacy therein, we do not address
the following: whether law enforcement reasonably relied on the apartment
manager‘s apparent authority to consent to entry; whether the search exceeded the
scope of a proper search incident to arrest; whether the seized evidence was
covered by the plain view exception to warrant requirement; whether exigent
circumstances justified the entry into and search of the apartment; and whether the
search and seizure of evidence was justified by the consent form signed by
Caraballo.
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door and was replaced with one that the apartment complex did not have access to.
Moreover, by the time they encountered Caraballo, law enforcement was aware
that the person inside had ignored their knocking, announcements, and drilling, and
that the person had barricaded himself inside the apartment with a piece of wood
and a hydraulic jack.  Additionally, law enforcement reasonably believed that the
former tenant had been evicted, and any person found inside was there illegally.
Once the officers entered the apartment, Caraballo identified himself as Victor
Caraballo and said that Hector Caraballo, the named person of interest, was his
brother.  When Agent Hidalgo arrived, Caraballo volunteered that he was
trespassing in the apartment.  Under the totality of the circumstances, law
enforcement had probable cause to arrest Caraballo for trespassing or to detain him
and question him further.  See Chavez v. State, 832 So. 2d 730, 747-48 (Fla. 2002)
(―Probable cause to arrest exists when facts and circumstances within an officer‘s
knowledge and of which he had reasonably trustworthy information are sufficient
to warrant a person of reasonable caution to believe that an offense has [been] or is
being committed.‖) (quoting McCarter v. State, 463 So. 2d 546, 548-49 (Fla. 5th
DCA 1985)).
Miranda Claim
Caraballo also contends that the taped interview that took place at the FDLE
office on the evening of April 28 was conducted in violation of his Fifth
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Amendment privilege against self-incrimination.  We disagree.  In Miranda v.
Arizona, 384 U.S. 436 (1966), the United States Supreme Court instituted certain
procedural safeguards to protect a suspect‘s Fifth Amendment right against self-
incrimination:
Prior to any questioning, the person must be warned that he has a right
to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.  The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently.  If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning.  Likewise, if the
individual is alone and indicates in any manner that he does not wish
to be interrogated, the police may not question him.
Id. at 444-45.  In concluding that the interview with Caraballo was not conducted
in violation of Miranda, we consider the following: the length of time between
Caraballo‘s Miranda warning and the interview; comments made by the officers
during the interview; and the statement made by Caraballo at the end of the
interview that he was hungry and tired.
First, the length of time between Caraballo‘s Miranda warning and the time
of the taped statement does not, without more, render his statement involuntary.
See Bush v. State, 461 So. 2d 936, 939 (Fla. 1984) (―Although it had been eleven
hours since the full recitation of his rights, Bush stated that he was aware of his
rights and desired to waive those rights.  There is no requirement that an accused
be continually reminded of his rights once he has intelligently waived them.‖).
- 22 -

In this case, Caraballo signed his waiver at 4:10 p.m. on April 28, and the
taped interview began about 10 p.m. that evening.  Caraballo was not given his
Miranda warning again before the interview began because he was informed of his
rights earlier.  Both Agent Hidalgo and Agent Susan Koteen of FDLE also testified
that Caraballo was advised of his rights in Spanish.  Caraballo said that he
understood each right, and he was provided a rights form in Spanish, which he
signed.  Both agents witnessed these events.  Consequently, we conclude that
Caraballo knowingly and voluntarily waived his Miranda rights, and that waiver
extended to his interview at the FDLE office later that evening.
Second, we conclude that comments made by the officers during the
interview, which suggested that Caraballo‘s cooperation with law enforcement
would be disclosed to the trial court, did not vitiate the voluntariness of Caraballo‘s
statement.  In particular, Caraballo contends that the officers improperly prodded
him to ―tell the truth‖ and promised to help him in court if he provided useful
information.  This Court has said that ―[t]he fact that a police officer agrees to
make one‘s cooperation known to prosecuting authorities and to the court does not
render a confession involuntary.‖  Maqueira v. State, 588 So. 2d 221, 223 (Fla.
1991); see also Bush, 461 So. 2d at 939 (―In addition, we have previously held that
a confession is not rendered inadmissible because the police tell the accused that it
would be easier on him if he told the truth.‖).
- 23 -

We reject Caraballo‘s reliance on Ramirez v. State, 15 So. 3d 852 (Fla. 1st
DCA 2009).  Caraballo contends that in light of Ramirez, certain comments made
to him by the law enforcement officers rendered his statements involuntary.  We
disagree.  In Ramirez, the First District Court of Appeal concluded that the trial
court should have granted Ramirez‘s motion to suppress an interrogation video
because multiple promises of help from law enforcement officers rendered his
statement involuntary.  Id. at 856-57.  We note that the facts which established the
involuntariness of the statements in Ramirez were much more excessive than those
upon which Caraballo relies.  We conclude that the officers‘ comments during the
taped interview of Caraballo did not affect the voluntariness of any statements
made by him.
Third, we reject Caraballo‘s argument that his statement was involuntary
because he was hungry and tired.  During the interview, Caraballo said that he had
to go to the bathroom, was hungry, and was exhausted.  However, Caraballo made
this statement at the very end of the interview, and when he did so, the agents
immediately stopped the interview.  Consequently, we find no merit in this
argument.
Because we conclude that the statements made during Caraballo‘s interview
were voluntary and that the interview was conducted with Caraballo having freely
- 24 -

waived his constitutional protection against self-incrimination, Caraballo is not
entitled to relief.
Prosecutor‘s Closing Argument
Caraballo alleges that a number of comments made during the prosecutor‘s
guilt phase closing argument were improper and deprived him of a fair guilt phase
proceeding.  Specifically, Caraballo contends that the prosecutor improperly
disparaged the tactics of defense counsel, improperly bolstered the credibility of
the prosecution, improperly commented on Caraballo‘s right to remain silent, and
made misstatements of law which improperly shifted the burden of proof to the
defense.  As a result, he argues, the prosecutor‘s misconduct renders his conviction
unreliable.
―Prosecutorial improprieties ‗must be viewed in the context of the record as
a whole to determine if a new trial is warranted.‘ ‖  LaMarca v. State, 785 So. 2d
1209, 1214 (Fla. 2001) (quoting Sireci v. State, 587 So. 2d 450, 452 (Fla. 1991)).
―The control of prosecutorial comments is within the trial court's discretion, and
this Court will not reverse the trial court‘s decision unless there has been an abuse
of that discretion.‖  Nowell v. State, 998 So. 2d 597, 606 (Fla. 2008) (citing
Schoenwetter v. State, 931 So. 2d 857 (Fla. 2006)).  After reviewing the closing
argument in its entirety, as we explain below, we conclude that the prosecutor‘s
comments do not warrant relief.
- 25 -

We begin by examining a comment that prompted both an objection from
defense counsel and a motion for mistrial:
Prosecutor: What else comes out in cross-examination?  Susan
Koteen is a bad person because she only had one Spanish interpreter
available.
How does that have anything to do with whether or not this guy
had committed a crime?  You mean, if he had confessed an hour and
45 minutes earlier that would have been different?
If he had confessed the next day, the next week, the next month
would that have changed something?  How does that have any
meaning?
So why were all these questions asked?  The questions were
asked because defense counsel has to distract you.
If you keep your eye on the ball, and talking about whether or
not this defendant was involved -
Defense Counsel: Objection.  The lawyers are not on trial,
Your Honor.  It is on voluntariness.
The Court: Come sidebar, please.
At this point, defense counsel moved for a mistrial and a lengthy sidebar was held
at the bench.  Although the court denied the motion for mistrial, it cautioned the
prosecutor about the tone of the argument and his questioning the motives of the
defense.  The Court said:
I don‘t think it‘s [sic] rises to a level of saying smoke and
screens or anything to suggest - I mean, to suggest anything that
would rise to the level of a mistrial.
But the reason why I did request a sidebar is because I‘m
concerned about the tone of the presentation with respect to defense
motives for asking questions and how he‘s choosing to proceed and I
don‘t know if this is going to permeate to the rest of your closing.
I‘m not granting a mistrial, but are you going to continue to
make an argument throughout closing about the motives for defense
counsel asking questions or the motives for defense counsel - because
- 26 -

I mean I‘m being honest with you - I have a problem if you are going
to continue to do that.
Caraballo contends that the prosecutor‘s comment was improper because it
disparaged the defense and questioned the motives of defense counsel.  However,
we conclude that the trial court properly denied the motion for mistrial.
A motion for mistrial should be granted only where necessary to ensure that
the defendant receives a fair trial.  See Mendoza v. State, 964 So. 2d 121 (Fla.
2007).  We conclude that the trial court did not abuse its discretion by denying
defense counsel‘s motion for mistrial because this comment was not so prejudicial
that it vitiated the entire trial.  Following the trial court‘s warning to the prosecutor
that he move on to another topic, the prosecutor complied by discussing the
scientific evidence introduced at trial.  Under these circumstances, the trial court
did not abuse its discretion in denying Caraballo‘s motion for mistrial.
Additionally, Caraballo argues that certain comments not objected to by
defense counsel were also improper: (1) a comparison of the defense‘s strategy to a
―scam‖; (2) a comment that ―only lawyers and painters can change black to white‖;
(3) a comment on Caraballo‘s right to remain silent; and (4) misstatements of law
concerning the burden of proof.  Comments that did not receive a timely objection
are not preserved for appellate review and are entitled to relief only where
fundamental error has occurred.  See Brooks v. State, 762 So. 2d 879, 898-99 (Fla.
2000).  Fundamental error is that which ―reaches down into the validity of the trial
- 27 -

itself to the extent that a verdict of guilty could not have been obtained without the
assistance of the alleged error.‖  Id. at 899 (quoting McDonald v. State, 743 So. 2d
501, 505 (Fla. 1999)).
Although we conclude that none of the unobjected-to comments rise to the
level of fundamental error, we address Caraballo‘s claim that the prosecutor
improperly commented on his constitutional right to remain silent.  We have said
that ―any comment on, or which is fairly susceptible of being interpreted as
referring to, a defendant‘s failure to testify is error and is strongly discouraged.‖
Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (quoting State v. Marshall, 476
So. 2d 150, 153 (Fla. 1985)).  However, when read in context, the prosecutor did
not offer an improper comment on Caraballo‘s right to remain silent.  Rather, the
prosecutor addressed Caraballo‘s apparent consciousness of guilt and the fact that
Caraballo‘s version of events changed with each account that he gave of the
crimes.  The prosecutor argued that Caraballo spoke voluntarily and manipulated
the facts to place himself in the best possible light.  Given the evidence presented
at trial that Caraballo provided four differing accounts of what happened, each one
increasing his involvement in the crimes, we find no error in the prosecutor‘s
comment.
- 28 -

Thus, after reviewing the prosecutor‘s guilt phase closing argument in the
context of the entire record, we conclude that none of the prosecutor‘s comments,
individually or cumulatively, warrant relief.
Penalty Phase Claims
Caraballo raises several claims relating to the penalty phase of his trial.
However, we write to address only one of these claims—that the trial court erred in
allowing the rebuttal testimony of Dr. Lazaro Garcia, the mental health expert who
conducted a competency evaluation of Caraballo.  As we explain below, we
conclude that Dr. Garcia should not have been permitted to testify as a State
witness during the penalty phase, and this abuse of the court‘s discretion requires
that Caraballo be granted a new penalty phase.  First, we explain the circumstances
which led to Dr. Garcia‘s penalty phase testimony.  Second, we discuss
Dr. Garcia‘s testimony.  Third, we explain why the admission of Dr. Garcia‘s
testimony was an abuse of discretion that cannot be shown to be harmless error.9
9.  We note that effective January 1, 2010, Florida Rule of Criminal
Procedure 3.211(e) was redesignated 3.211(d) due to the deletion of another
subdivision of the rule.  See In re Amend. to Fla. Rules of Crim. Pro., 26 So. 3d
534 (Fla. 2009).  However, for purposes of this opinion, we refer to the rule as
3.211(e).  We stress, however, that our opinion applies with equal force to the new
3.211(d), which did not undergo any substantive amendments, and is in all
substantive respects identical to former rule 3.211(e).
- 29 -

Background
Months before Caraballo‘s trial in April 2007, he was evaluated by two
defense mental health experts.  Based on the findings of these experts, in a motion
filed in October 2006, the defense sought to have Caraballo declared mentally
retarded.  At a status hearing held that same month, the State raised and the court
echoed concerns about Caraballo‘s competence to proceed.  As a result of these
concerns, the trial court appointed Dr. Lazaro Garcia to conduct a competency
evaluation of Caraballo.  Dr. Garcia‘s only role in this case was to evaluate
Caraballo for competency pursuant to the court‘s order.  Dr. Garcia ultimately
concluded that Caraballo was competent to proceed.
In January 2007, Caraballo filed a motion to preclude Dr. Garcia from being
used as a witness in any proceeding other than a competency hearing.  At that time,
the State sought to use the testimony of Dr. Garcia during Caraballo‘s upcoming
mental retardation hearing to prove that Caraballo was not mentally retarded and
was malingering.  Caraballo argued that to allow Dr. Garcia‘s testimony for any
purpose other than the determination of his competence to proceed would violate
the confidentiality protection extended by Florida Rule of Criminal Procedure
3.211(e).  Based on rule 3.211(e), the court granted Caraballo‘s motion to preclude
Dr. Garcia from testifying during the mental retardation hearing.
- 30 -

Notwithstanding its earlier consideration of rule 3.211(e), the trial court
permitted Dr. Garcia to testify as a State rebuttal witness during the penalty phase
over defense objections.
Testimony of Dr. Garcia
Dr. Garcia testified that he was appointed by the court to conduct an
evaluation of Caraballo.  Dr. Garcia opined that at the time of the evaluation,
Caraballo was being untruthful and was malingering.  Dr. Garcia necessarily based
his opinion on his observations of Caraballo during the competency evaluation,
which was the only evaluation he performed.
Specifically, Dr. Garcia testified that Caraballo claimed to have experienced
visual, auditory, tactile and olfactory hallucinations.  Because the reported number
of occurrences of distinct hallucinations was abnormally high, Dr. Garcia
concluded that Caraballo was malingering.  Dr. Garcia also testified that during the
evaluation, Caraballo feigned a visual hallucination of a roach.  Moreover,
Dr. Garcia testified that he gave Caraballo a standardized test10 to evaluate
malingering and concluded that Caraballo was malingering because he provided
too many incorrect answers.  Dr. Garcia also testified about Caraballo‘s
understanding of the criminal process, a part of the evaluation which was essential
to a determination of whether Caraballo was competent to proceed.  Despite being
10.  Test of Memory Malingering (TOMM).
- 31 -

cautioned before his testimony began, Dr. Garcia also mentioned during cross-
examination that the evaluation he conducted was a competency evaluation.  What
is more, during redirect examination, Dr. Garcia was questioned by the State in
great detail about the topic of competency.  The transcript of the proceedings
revealed the following:
Prosecutor: Let‘s just go back to what you were appointed for now
that we are allowed to say the magic word.  You weren‘t appointed to
find out whether or not four-and-a-half years before the defendant was
sane when he committed the crime?
Dr. Garcia: That‘s correct.
Prosecutor: You weren‘t appointed to anything having to do with
retardation?
Dr. Garcia: That‘s correct.
Prosecutor: Nobody even sent you an order saying please examine,
please check, not even suggested?
Dr. Garcia: That‘s correct.
Prosecutor: Your purpose was limited to one thing; is that right?
Dr. Garcia: That‘s correct.
Prosecutor: And what was that?
Dr. Garcia: Competency.
Prosecutor: Explain to the jurors exactly what competency is?
Dr. Garcia: Competency basically is, can you, at the time, at this
time, at the time of the evaluation, go to court or consult with your
attorney.  In other words, do you have sufficient capacity to realize
- 32 -

what you have been charged with?  Do you realize the consequences,
the seriousness of the charges?  Can you speak to your lawyer, and
saying this is the events as they happen?  Can you, if somebody says
something incorrectly or erroneous about you, can you tell the lawyers
that‘s not the way it happened, this is the way it happened.  Do you
have an idea of how the court system works?  Do you realize it‘s kind
of like a boxing match where you have somebody who is defending
you and you have somebody who is prosecuting you?
And those are the kinds of things you look for in a competency
evaluation.  In other words, can you go to trial and understand what‘s
going on?
Prosecutor: Now is competency something that can vary month-to-
month and year-to-year for everybody?
Dr. Garcia: Yes.
Prosecutor: The date that you were specifically asked to examine the
defendant by court order, were you trying to determine right at that
time if he was competent to sit down the way he is today and assist his
attorneys in the presentation of the case?
Dr. Garcia: That‘s correct.
Prosecutor: And what did you conclude, sir?
Dr. Garcia: That he was competent.
Prosecutor: Were you ever asked to do anything else about this big
book or anything else?  Was there anything else ever requested of you
by any other person?
Dr. Garcia: No.
Prosecutor: By myself, defense counsel, by the judge?  Anybody?
Dr. Garcia: Nobody.
- 33 -

Prosecutor: Were your duties completed when you returned the
report to the Judge saying I found this person to be competent to
proceed, go ahead?
Dr. Garcia: To the best of my knowledge my duties were complete.
Prosecutor: Thank you, sir, nothing else.
Dr. Garcia‘s testimony about Caraballo‘s competency evaluation illustrates the
very harm that Florida Rule of Criminal Procedure 3.211(e) is intended to prevent.
Competency and Rule 3.211(e)
It is well-settled that a criminal prosecution may not move forward at any
material stage of a criminal proceeding against a defendant who is incompetent to
proceed.  See Medina v. California, 505 U.S. 437, 439 (1992).  In order to be
deemed competent to proceed, a defendant must have a ―sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding‖ and
―a rational as well as factual understanding of the proceedings against him.‖
Dusky v. United States, 362 U.S. 402, 402 (1960); see also § 916.12(1), Fla. Stat.
(2006).  This fundamental principle is grounded in the right to due process of law,
a right which is afforded to criminal defendants under both the United States
Constitution and the Florida Constitution.  See U.S. Const. amend. XIV; art. I, § 9,
Fla. Const.
This fundamental protection of due process of law is also expressly provided
for in the Florida Rules of Criminal Procedure.  Rule 3.210(a) provides that ―[a]
- 34 -

person accused of an offense or a violation of probation or community control who
is mentally incompetent to proceed at any material stage of a criminal proceeding
shall not be proceeded against while incompetent.‖  Moreover, rule 3.210(b)
provides that if the court ―has reasonable ground to believe that the defendant is
not mentally competent to proceed,‖ it shall immediately schedule a hearing to
determine the defendant‘s competency and may appoint experts to evaluate the
defendant.  See Scott v. State, 420 So. 2d 595, 597 (Fla. 1982) (―[I]t is the
responsibility of the trial court to conduct a hearing for competency to stand trial
whenever it reasonably appears necessary to ensure that a defendant meets the
standard of competency.‖).  Under rule 3.210(b), the order for a competency
hearing may arise through the court on its own motion or through a motion by
counsel for the State or the defense.
The competency evaluation itself is governed by rule 3.211, entitled
―Competence to Proceed: Scope of Examination and Report.‖  This rule sets forth
the factors that court-appointed experts must consider when evaluating whether a
defendant is competent to proceed, and it details the information that must be
addressed in the examining expert‘s written report.  The rule also provides
procedures for the examining expert in the event that a defendant is found
incompetent to proceed.  These procedures have also been codified in section
916.12, Florida Statutes (2006).
- 35 -

As a result of the court‘s obligation to ensure that the material stages of a
prosecution not proceed against a criminal defendant while the defendant is
mentally incompetent, any defendant may be subjected to a mandatory competency
evaluation and, consequently, subjected to the risk of saying something or
responding in a manner that is detrimental to or incriminates the defendant.  It is
for this reason that the protection of confidentiality is afforded to the substance of a
defendant‘s competency evaluation.  Under rule 3.211(e), except in certain limited
circumstances, the information obtained during the course of a competency
evaluation must remain confidential. Adopted in 1980, rule 3.211(e) provides:
Rule 3.211.  Competence to Proceed: Scope of Examination and
Report
(e) Limited Use of Competency Evidence.
(1) The information contained in any motion by the defendant
for determination of competency to proceed or in any report of experts
filed under this rule insofar as the report relates solely to the issues of
competency to proceed and commitment, and any information elicited
during a hearing on competency to proceed or commitment held
pursuant to this rule, shall be used only in determining the mental
competency to proceed or the commitment or other treatment of the
defendant.
(2) The defendant waives this provision by using the report, or
portions thereof, in any proceeding for any other purpose, in which
case disclosure and use of the report, or any portion thereof, shall be
governed by applicable rules of evidence and rules of criminal
procedure.  If a part of the report is used by the defendant, the state
may request the production of any other portion of that report that, in
fairness, ought to be considered.
- 36 -

Fla. R. Crim. P. 3.211(e) (emphasis added).  Moreover, a committee note relating
to rule 3.211(e) states: ―This subdivision provides for the confidentiality of the
information obtained by virtue of an examination of the defendant pursuant to this
subdivision.‖  Fla. R. Crim. P. 3.211(e) cmt. (1980).
The Testimony of Dr. Garcia and Harmless Error
As we consider the propriety of the trial court having allowed Caraballo‘s
competency expert, Dr. Garcia, to offer rebuttal testimony during the penalty
phase, we are mindful that ―[a] trial court has wide discretion concerning the
admissibility of evidence, and, in the absence of an abuse of discretion, a ruling
regarding admissibility will not be disturbed.‖  Jent v. State, 408 So. 2d 1024, 1029
(Fla. 1981).  Given the clear confidentiality protection afforded by rule 3.211(e)(1),
the trial court abused its discretion by permitting Dr. Garcia to testify.
We also conclude that the admission of Dr. Garcia‘s testimony was not
harmless error.  When examining whether an error is harmless, this Court
determines ―whether there is a reasonable possibility that the error affected the
verdict.‖  State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).   ―If the appellate
court cannot say beyond a reasonable doubt that the error did not affect the verdict,
then the error is by definition harmful.‖  Goodwin v. State, 751 So. 2d 537, 541
(Fla. 1999) (quoting DiGuilio, 491 So. 2d at 1139).  Dr. Garcia‘s testimony
focused heavily on whether Caraballo was a malingerer.  The testimony suggested
- 37 -

to the jury that Caraballo lied about having some or all of the types of
hallucinations that he claimed, feigned a visual hallucination during the
competency evaluation, and purposely gave incorrect answers on the malingering
test in an effort to appear to be incompetent to proceed.  There is little question that
if the jury believed Dr. Garcia‘s testimony, it would have discounted other
evidence that the defense introduced as mental health mitigation.  Thus, the
admission of Dr. Garcia‘s testimony interfered with the jury‘s ability to conduct a
proper evaluation of ―[w]hether sufficient mitigating circumstances exist[ed]
which outweigh[ed] the aggravating circumstances found to exist.‖
§ 921.141(2)(b), Fla. Stat. (2006).  Consequently, there is at a minimum a
reasonable possibility that the admission of Dr. Garcia‘s testimony, which attacked
the credibility of evidence offered by Caraballo as mitigation, affected the jury‘s
determination of whether it should recommend a sentence of life imprisonment or
death.  Therefore, the error was harmful.
This Court has previously addressed rule 3.211(e) claims in Phillips v. State,
894 So. 2d 28 (Fla. 2004), and Long v. State, 610 So. 2d 1268 (Fla. 1992).  While
this Court concluded that the testimony of a competency expert was permissible in
Phillips and Long, we note significant procedural and factual distinctions between
the two cases and Caraballo‘s case and find them inapplicable here.
- 38 -

CONCLUSION
Because we reverse for a new penalty phase based on the violation of rule
3.211(e), we do not address the other penalty phase issues raised by Caraballo or
by the State on cross-appeal.  We affirm Caraballo‘s convictions for the first-
degree murder of Angel, the attempted first-degree murder of Portobanco, both
counts of kidnapping, both counts of robbery, and the sexual battery of Angel.  We
also affirm Caraballo‘s sentences for the crimes of attempted murder, kidnapping,
robbery, and sexual battery.  However, we vacate Caraballo‘s sentence of death for
the murder of Angel and we remand to the trial court for further proceedings
consistent with this opinion.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
POLSON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.
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 to affirm Caraballo‘s convictions.
However, I respectfully dissent to the majority‘s decision to remand for a new
penalty phase.  Unlike the majority, I do not believe that Dr. Garcia‘s penalty
phase testimony constitutes reversible error.
- 39 -

Our precedent indicates that a trial court does not abuse its discretion in
permitting an expert to testify during the penalty phase about a competency
interview to rebut the defense‘s mental mitigation.  In Phillips v. State, 894 So. 2d
28, 40-41 (Fla. 2004), this Court addressed a claim that appellate counsel was
ineffective for failing to raise the admissibility of an expert‘s testimony during a
second penalty phase in violation of Florida Rule of Criminal Procedure 3.211(e).
This Court concluded that the expert‘s testimony ―was proper, and appellate
counsel cannot be deemed ineffective for failing to raise a meritless issue.‖
Phillips, 894 So. 2d at 41 (citing Long v. State, 610 So. 2d 1268, 1275 (Fla. 1992)).
Like Dr. Garcia in the instant case, the expert in Phillips testified during a penalty
phase about a competency interview with the defendant to rebut the defense‘s
proposed mitigation.  In fact, like Dr. Garcia, the expert in Phillips ―testified to the
type of questions he asked [during the competency interview, the defendant‘s]
responses, and the psychological interpretation of those responses.‖  Id.
The difference between Phillips and the instant case is that here (unlike in
Phillips) the purpose of the mental health interview was disclosed to the jury.
However, any error in mentioning competency was invited error in this case.  Dr.
Garcia first mentioned the purpose of his evaluation of Caraballo in response to
defense counsel‘s questions on cross-examination as to why Dr. Garcia had not
reviewed particular mental health records from around the time preceding the
- 40 -

murders.  The next two instances in which Dr. Garcia discussed competency were
also in response to similar questions by defense counsel.  Therefore, once defense
counsel opened this door and invited any error, the State was free to address the
matter on rebuttal.  See Tanzi v. State, 964 So. 2d 106, 115 (Fla. 2007); Ellison v.
State, 349 So. 2d 731, 732 (Fla. 3d DCA 1977) (explaining that ―Florida courts
follow the ‗invited error‘ rule‖ and stating that ―[h]aving opened the door to this
line of questioning by his own direct testimony, [defendant] cannot now be heard
to complain that the State marched through the door so opened‖).
Moreover, in Phillips, the expert testified that he had conducted a ―mental
status examination‖ of the defendant.  Phillips, 894 So. 2d at 41.  Certainly, the
term ―competency‖ can do no more harm than the term ―mental status
examination.‖  It simply appears the majority is improperly receding from this
Court‘s decision in Phillips without acknowledging that it is doing so.
CANADY, J., concurs.
An Appeal from the Circuit Court in and for Dade County,
William Lewis Thomas, Judge - Case No. F02-12509D
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, Sandra Jaggard, and Lisa
A. Davis, Assistant Attorneys General, Miami, Florida,
for Appellee
- 41 -

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