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Defendant was convicted of first degree murder, both premeditated and felony murder, as well as other felony counts, and sentenced to death. On instant appeal, defendant raised claims of ineffective assistance of trial counsel pertaining to both the guilt and penalty phase of trial and raised a claim arising after the court's remand to the circuit court, challenging the fairness of the postconviction evidentiary hearing based upon the denial of his motion to disqualify the circuit judge and the exclusion of certain testimony and evidence at the hearing. The court discussed each claim and held that the circuit court's order denying defendant's Florida Rule of Criminal Procedure 3.851 amended motion was affirmed.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
STATE OF FLORIDA,
[July 8, 2011]
This case is before the Court on appeal from an order denying an amended
motion to vacate a judgment of conviction of first-degree murder and a sentence of
death under Florida Rule of Criminal Procedure 3.851. The Court has jurisdiction.
See art. V, § 3(b)(1), Fla. Const. As discussed below, we affirm the circuit court‘s
I. FACTS AND PROCEDURAL HISTORY
This is Marbel Mendoza‘s third appeal pertaining to this initial rule 3.851
proceeding, arising from a 1994 conviction and death sentence. Mendoza was
indicted for first-degree murder, both premeditated and felony murder, as well as
other felony counts, associated with the murder of Conrado Calderon on March 17,
1992. A jury trial was held January 31, 1994, through February 8, 1994, before the
Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County,
Florida. The jury convicted Mendoza of first-degree felony murder, 1 conspiracy to
commit robbery, attempted armed robbery, armed burglary with an assault, and
possession of a firearm during the commission of a felony.
The facts underlying Mendoza‘s conviction were summarized in the Court‘s
opinion on direct appeal. Mendoza v. State, 700 So. 2d 670, 672 (Fla. 1997).
Because the Court now addresses Mendoza‘s claims on appeal following the denial
of postconviction relief, those facts are again set out in detail:
Appellant asked Humberto Cuellar to participate in robbing
Conrado Calderon, who owned a mini-market. Humberto asked his
brother, Lazaro Cuellar, to act as the getaway driver. The three men
observed Calderon‘s morning routine at his house in Hialeah. Then,
before dawn on the morning of March 17, 1992, the three drove to
Calderon‘s house where they stopped and waited. When Calderon
appeared at his front door at 5:40 a.m., Humberto and appellant hid
behind a hedge. Appellant carried a .38 caliber revolver, and
Humberto carried a 9 mm automatic pistol. As Calderon left his
house and approached his Ford Bronco, Humberto and appellant
approached Calderon from the rear and held him in Calderon‘s
driveway between his Ford and Cadillac automobiles. During the
ensuing struggle, Humberto used his gun to hit Calderon on the head.
Calderon took out a .38 special revolver and shot Humberto in the
chest. The injured Humberto ran to Lazaro‘s car. As he ran,
1. Before the case was submitted to the jury, the State conceded that it had
failed to carry its burden of proof on the charge of premeditated first-degree
Humberto heard other shots. Less than a minute later, appellant
arrived at Lazaro‘s car and told Humberto that appellant had shot
Calderon. No money was taken. The three drove to a hospital in
Hialeah. On the way, appellant told Humberto to say that Humberto
had been shot by someone who had robbed him.
At the hospital, police recovered Lazaro‘s car containing
Humberto‘s 9 mm automatic pistol. The pistol was still fully loaded
and had hair embedded in the slide, which was consistent with the gun
having been used to hit someone on the head. The same day,
Humberto was taken to the Hialeah Police Station, where he gave a
sworn statement that matched his later testimony for the State. When
appellant was arrested on March 24, 1992, he had shaved his head and
moved out of his normal residence. Items recovered from the scene
included a bank bag, which was under the victim and contained
$2,089, and other cash which was in Calderon‘s pockets and wallet.
Appellant‘s fingerprints were found on Calderon‘s Cadillac, adjacent
to where Calderon‘s body was found. Calderon‘s gun was found
under his body. Casings and bullets were recovered from the scene
and from the victim‘s body. An x-ray of Humberto showed that the
bullet lodged near his spine was consistent with Calderon‘s .38
special. Three of the four .38 caliber shots that hit Calderon were
fired from point-blank range, and the last was fired from less than six
Mendoza‘s codefendants, brothers Lazaro and Humberto Cuellar, did not go
to trial. Instead, as the Court noted in Mendoza‘s direct appeal,
Lazaro Cuellar pled guilty to manslaughter, conspiracy, and attempted
armed robbery and was sentenced to ten years in state prison. He did
not testify at appellant‘s trial. Humberto Cuellar pled guilty to
second-degree murder, conspiracy, attempted armed robbery,
burglary, and use of a firearm in the commission of a felony. He was
sentenced to twenty years in state prison. Humberto testified as an
eyewitness for the State at appellant‘s trial.
Id. at 672-73.
Following the jury‘s guilty verdicts, the case proceeded to the penalty phase
of trial. After the presentation of evidence by the defense, 2 by a vote of seven to
five, the jury recommended that Mendoza be sentenced to death. A Spencer
hearing3 was held on June 22, 1994. The trial court found two aggravating
circumstances: (1) Mendoza was previously convicted of a violent felony, and (2)
the murder was committed while Mendoza was engaged in the commission of a
robbery and for pecuniary gain (aggravators merged). The trial court gave little
weight to Mendoza‘s evidence of drug use and minimal weight to his mental health
evidence. Accordingly, the trial court followed the jury‘s recommendation in
imposing a sentence of death with respect to the murder conviction. 4
2. Mendoza presented the testimony of Nilia Mendoza, his mother; Dr.
Jethro Toomer, a psychologist; and codefendant Humberto Cuellar. The defense
also introduced into evidence Mendoza‘s childhood medical record from Cuba.
The State did not present additional evidence in the penalty phase.
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993) (reiterating that in a capital
case, following a jury‘s recommendation of death, the trial judge shall hold a
hearing providing the defendant, his attorney, and the State the opportunity to be
heard by the trial court alone and to present additional evidence and argument,
before pronouncing sentence).
4. Mendoza received a sentence of life imprisonment for the armed burglary
with an assault conviction and two terms of fifteen years‘ imprisonment for the
convictions for conspiracy to commit robbery and attempted armed robbery with a
The Court affirmed Mendoza‘s judgment of conviction and sentence on
October 16, 1997. Mendoza, 700 So. 2d at 679.5 Mendoza subsequently filed his
motion for postconviction relief and on September 5, 2000, filed an amended
motion raising twenty-seven claims. 6 In 2002, and then in 2007, on appeal from
5. Mendoza raised the following issues on direct appeal:
(1) the evidence presented was not sufficient to convict appellant for
burglary as an underlying crime in the felony murder conviction; (2)
the trial court erred in allowing the State to introduce as substantive
evidence the sworn prior consistent statement of Humberto Cuellar;
(3) the trial court erred in denying appellant‘s motion for mistrial
based on the judge‘s ex parte communications with jurors; (4) the trial
court erred in denying three challenges for cause to prospective jurors
based on their beliefs concerning the death penalty; (5) the trial court
erred during the penalty phase in excluding mitigation evidence; (6)
the trial court erred in allowing the State to impeach appellant‘s expert
witness by asking him whether he had considered appellant‘s criminal
history and in allowing the State to comment during closing argument
on appellant‘s pending criminal charges; (7) the trial court erred in
finding as an aggravating circumstance that the murder was
committed for pecuniary gain; (8) the trial court erred in failing to
adequately address in the sentencing order appellant‘s proposed
mitigation; and (9) the death penalty is not proportionally warranted in
Mendoza, 700 So. 2d at 673 n.1.
6. Those claims are as follows:
(1) Mendoza had insufficient access to public records; (2) Mendoza
was denied a fair trial due to the cumulative effects of ineffective
assistance of counsel, withholding of exculpatory or impeaching
material, newly discovered evidence, and improper trial court rulings;
(3) the State withheld evidence that was exculpatory and material; (4)
trial counsel was ineffective for failing to challenge jurors based on
separate orders summarily denying Mendoza‘s postconviction amended motion,
the Court remanded the proceedings to the circuit court for an evidentiary hearing
on Mendoza‘s claims of ineffective assistance of trial counsel. See Mendoza v.
their biases toward the death penalty; (5) the State‘s arguments and
the trial court‘s statements at trial presented impermissible
considerations to the jury, misstated the law and facts, and were
inflammatory and improper; (6) Mendoza was denied the right to an
adequate mental health evaluation; (7) trial counsel failed to
investigate and prepare mitigating evidence; (8) Mendoza is innocent
of first-degree murder; (9) Mendoza is innocent of the death penalty;
(10) incorrect penalty phase jury instructions were given by the trial
judge; (11) the trial court gave erroneous instructions to the jurors on
the standard by which they must judge expert testimony; (12) the jury
received inadequate guidance on aggravating circumstances; (13) the
State improperly introduced nonstatutory aggravating factors; (14)
prosecutorial and judicial comments to the jury mischaracterized the
importance of the jury‘s role; (15) Florida‘s rules prohibiting appellate
counsel from interviewing jurors are unconstitutional; (16) trial
counsel was ineffective for failing to object to the State‘s overbroad
and vague arguments in aggravating circumstances; (17) execution by
electrocution or lethal injection is cruel and unusual punishment; (18)
Florida‘s capital sentencing scheme is unconstitutional; (19) pretrial
publicity and failure to change venue denied Mendoza a fair and
impartial jury; (20) the trial court erred in refusing to find and
consider mitigating circumstances clearly set out by the record; (21)
the trial court‘s sentencing order does not reflect an independent
weighing or reasoned judgment; (22) Mendoza was denied a proper
direct appeal because of omissions in the record; (23) it was
unconstitutional for the judge and jury to consider Mendoza‘s prior
conviction in the penalty phase; (24) the death sentence was
predicated on an automatic aggravating factor; (25) the trial judge was
not impartial; (26) Mendoza is insane to be executed; and (27) the jury
venire was not properly sworn before trial.
See Mendoza v. State, 964 So. 2d 121, 126 n.3 (Fla. 2007).
State, 817 So. 2d 848 (Fla. 2002) (table); Mendoza v. State, 964 So. 2d 121 (Fla.
Following the Court‘s most recent remand on May 24, 2007, another circuit
judge was assigned to preside over the case. The circuit court scheduled the
evidentiary hearing to begin on June 9, 2008. Mendoza, on his own motion,
sought to discharge appointed counsel on the first day of the hearing. The circuit
court heard Mendoza‘s motion to discharge before beginning the evidentiary
hearing; Mendoza‘s motion was denied. The evidentiary hearing was held as
scheduled. The circuit court issued an order denying postconviction relief on April
1, 2009. That order is the subject of the instant appeal. 8
II. AMENDED MOTION FOR POSTCONVICTION RELIEF
7. An evidentiary hearing was not held with respect to the initial review of
Mendoza‘s rule 3.851 amended motion. In Mendoza‘s first appeal, in an
unpublished order dated April 3, 2002, we specifically directed that the circuit
court, upon appointment of a new judge, hold an evidentiary hearing on Mendoza‘s
claims of ineffective assistance of trial counsel. See Mendoza, 964 So. 2d at 127
(citing Mendoza v. State, 817 So. 2d 848 (Fla. 2001) (table)). Although a hearing
was held on remand, the circuit court again summarily denied defendant‘s claims,
while setting out the standards applicable to ineffective assistance of counsel
claims. Mendoza, 964 So. 2d at 128. Because the circuit court‘s two-page order
failed to individually and expressly address the claims raised in the postconviction
motion, the case was again remanded. Id. at 129. A new evidentiary hearing was
necessarily because the circuit judge who previously presided over the hearing was
8. The Court previously denied Mendoza‘s petition for writ of habeas
corpus that had been filed with his appeal of an earlier denial of rule 3.851 relief.
See Mendoza, 964 So. 2d at 129.
Mendoza‘s appeal raises claims of ineffective assistance of trial counsel
pertaining to both the guilt and penalty phases of trial. In addition, Mendoza raises
a claim arising after this Court‘s remand to the circuit court, challenging the
fairness of the postconviction evidentiary hearing based upon the denial of his
motion to disqualify the circuit judge and the exclusion of certain testimony and
evidence at the evidentiary hearing.
A. Ineffective Assistance of Trial Counsel—Guilt Phase
The standard governing the Court‘s review of claims of ineffective
assistance of trial counsel is well established. Whether directed at counsel‘s
performance during the guilt or penalty phase of trial, the defendant must satisfy
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined. A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
Ferrell v. State, 29 So. 3d 959, 969 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)). Significantly, ―[b]ecause both prongs of the
Strickland test present mixed questions of law and fact, this Court employs a
mixed standard of review, deferring to the circuit court‘s factual findings that are
supported by competent, substantial evidence, but reviewing the circuit court‘s
legal conclusions de novo.‖ Johnston v. State, 36 Fla. L. Weekly S122, S123 (Fla.
Mar. 24, 2011).
Review of counsel‘s 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.‖ Heath v. State, 3 So. 3d 1017, 1027 (Fla. 2009) (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)). We recently said:
―[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.‖ The defendant carries the burden to ―overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.‖ Moreover, this Court has
held, ―That there may have been more that trial counsel could have
done or that new counsel in reviewing the record with hindsight
would handle the case differently, does not mean that trial counsel‘s
performance during the guilt phase was deficient.‖
Everett v. State, 54 So. 3d 464, 478 (Fla. 2010) (citations omitted) (quoting
Anderson v. State, 18 So. 3d 501, 509 (Fla. 2009); Strickland, 466 U.S. at 689;
State v. Coney, 845 So. 2d 120 (Fla. 2003)).
The prejudice prong of the two-part test requires a determination whether the
specific deficiency in counsel‘s performance rises to the level that there is a
reasonable probability that, but for counsel‘s unprofessional error, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. ―A reasonable
probability is a probability sufficient to undermine confidence in the outcome.‖
Hutchinson v. State, 17 So. 3d 696, 700 (Fla. 2009) (quoting Strickland, 466 U.S.
1. Failure to Present a Consistent Defense Theory
Mendoza‘s first claim of ineffective assistance of counsel is premised upon
trial counsel‘s comment in opening statement that codefendant Humberto Cuellar
was the shooter, while stating in closing argument that Mendoza‘s other
codefendant, Lazaro Cuellar, had fired the shot. In his amended rule 3.851 motion,
Mendoza argued as follows:
Had counsel either (1) remained consistent with the original defense
that Humberto Cuellar shot Calderon, (2) originally asserted that
Lazaro Cuellar was the shooter and used the evidence available to
support that defense or (3) explained the reason for the sudden change
in theories and presented additional evidence that illustrated that
Lazaro, as opposed to Humberto, was the shooter, there is a
reasonable probability that the jury would have believed Mr. Mendoza
over the testimony of Humberto Cuellar. In failing to provide such
evidence or explanation, Suri completely lost credibility with the jury
and ensured Mr. Mendoza‘s conviction.
On appeal, Mendoza relies upon the American Bar Association Guidelines
for the Appointment and Performance of Counsel in Death Penalty Cases (rev. ed.
2003) (ABA Guidelines) to establish that counsel‘s performance was deficient.
Mendoza argues that, as recognized in Wiggins v. Smith, 539 U.S. 510, 524
(2003), the ABA Guidelines ―supply a norm as to what amounts to ‗reasonable‘
standards of representation in a capital case.‖ According to Mendoza, counsel‘s
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inconsistent arguments to the jury are contrary to the standard set out in ABA
Guideline 10.10.1, providing that counsel should formulate an internally consistent
theory of the case. Mendoza argues that as a result of this inconsistency, one
which counsel offered no explanation to the jury, ―the jury could have concluded
nothing else but that Mr. Mendoza had no bona fide defense to the State‘s charges
and that nothing trial counsel argued had any credibility or validity.‖
The Court has previously addressed the role of the ABA Guidelines with
respect to evaluating claims of ineffective assistance of counsel in capital cases:
The United States Supreme Court has referred to the ABA standards
as ―guides to determining what is reasonable.‖ Wiggins v. Smith, 539
U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting
Strickland, 466 U.S. at 688, 104 S.Ct. 2052). However, Strickland
In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel‘s assistance was
reasonable considering all the circumstances. Prevailing norms
of practice as reflected in American Bar Association standards
and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to
4-8.6 (2d ed. 1980) (―The Defense Function‖), are guides to
determining what is reasonable, but they are only guides. No
particular set of detailed rules for counsel‘s conduct can
satisfactorily take account of the variety of circumstances faced
by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant. Any such
set of rules would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude counsel
must have in making tactical decisions.
Id. at 688-89, 104 S. Ct. 2052.
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Morton v. State, 995 So. 2d 233, 244 (Fla. 2008). The ABA Guidelines are not a
set of rules constitutionally mandated under the Sixth Amendment and that govern
the Court‘s Strickland analysis. Rather, the ABA Guidelines provide guidance,
and have evolved over time as has this Court‘s own jurisprudence. 9 To hold
otherwise would effectively revoke the presumption that trial counsel‘s actions,
based upon strategic decisions, are reasonable, as well as eviscerate ―prevailing‖
from ―professional norms‖ to the extent those norms have advanced over time.
See Bobby v. Van Hook, 130 S. Ct. 13, 17 (2009) (reversing federal appellate
decision which treated the 2003 ABA Guidelines, announced eighteen years after
the defendant had been tried, ―as inexorable commands with which all capital
defense counsel must comply‖).
The Court need not decide whether trial counsel presented an inconsistent
defense theory. We note that Mendoza did not establish that the defense theory of
the case was that Humberto shot the victim. Rather, as testified to at the hearing
by trial counsel, their strategy was that Mendoza did not fire the shot, and that the
9. In 1989, the American Bar Association (ABA) first published the
guidelines, available from the ABA‘s website at http://www.americanbar.org/
989Guidelines.authcheckdam.pdf, which was revised in 2003. See American Bar
Association Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003) (reprinted). As explained
in the revised version of the ABA Guidelines, Guideline 10.10.1 was a stylistic
revision of former Guideline 11.7.1 in the 1989 edition.
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purpose of the confrontation with the victim was to collect a debt. 10 While
counsel‘s closing argument concerning who fired the gun differed from that made
during his opening statement, 11 there was evidence at trial supporting the defense
10. At the evidentiary hearing, defense attorney Arnaldo Suri, one of
Mendoza‘s trial lawyers and the one chiefly responsible for the guilt phase,
testified concerning the defense theory of the case as follows:
Well, our theory of the case was that there was some question
as to whether in fact this was a robbery. What we had gotten in taking
the deposition, I believe of Lazaro Cuellar and this information from
him that Mr. Calderon owed Mr. Mendoza and Mr. Humberto Cuellar
some money and that they went there to seek repayment. I think
that‘s generally the working assumption in the guilt phase.
Attorney Suri also testified as to the defense theory of the identity of the shooter in
We thought that the evidence was inconclusive and we felt that
this was extremely important to raise doubt in the guilt phase about
the possible shooters.
The reason we felt that way was because the State had offered
fairly generous plea offers to the Cuellar brothers. We thought if we
can raise a doubt who the shooter was and like I said the evidence was
inconclusive and there was some forensic evidence, physical evidence
to suggest perhaps that one of the Cuellar brothers was the shooter,
that we would have a fairly powerful argument to the jury that this
was not a death penalty case, based upon the proportionality and
based with quite frankly on the facts of the case were not clear as to
who of the three individuals was the shooter. I think that‘s basically
our view of the case.
11. Based upon the Court‘s scrutiny of the transcripts of defense counsel‘s
opening statement and closing argument, as well as that of defense counsel‘s
testimony before the circuit court at the evidentiary hearing, we do not understand
the defense theory as necessarily turning upon who fired the weapon, but rather
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that this defendant did not. Relevant to this claim, defense attorney Arnaldo Suri
made the following opening statement:
The evidence in this case is going to prove and show you that there is
absolutely no evidence that Marbel Mendoza shot anybody, or even
that he had a gun on March 17th of 1992.
On the contrary, you know what the physical evidence is going
to show? You know that the state‘s expert witnesses are going to
come over here and testify, too, that Humberto Cuellar and his
brother, Lazaro Cuellar, had gunpowder residue all over their hands,
because, you see, when the Calderone [sic] brothers were stopped and
arrested at the hospital one of the things the detective from Hialeah
did was send an expert technician to hand-swab their hands just in
case the Cuellar brothers were involved in the shooting of Mr.
Calderone a few minutes earlier.
This actually took place three and a half hours later when they
got arrested, and the hand swabs of the Cuellar brothers were taken,
and, lo and behold, later on when the state‘s expert witness checked
those hand swabs they found so many particles -- he said he found so
many particles on Humberto Cuellar that he stopped counting. Lazaro
Cuellar -- who they just told you was in he [sic] car -- he counted 21
on one hand. That is the physical evidence.
So, where is their version -- where does it come from? Very
detailed, right? You know where it comes from, it comes from
Humberto Cuellar, and that‘s the state‘s version. That is Humberto
Cuellar‘s story, and that is what you are going to hear.
Humberto Cuellar comes in here and says, ―Guess who the
shooter is? Marbel Mendoza.‖ Who is he with; his brother. His
brother gets to stay in the car, but interestingly enough, whose gun
was used to hit Mr. Calderone over the head? It was Marbel
No, there is no evidence that Marbel Mendoza even had a gun.
You know whose gun that was that was found with hair particles later
when the state‘s expert checked it out? That was Lazaro Cuellar‘s
gun, the other brother, the one who supposedly stayed in the car and
who had gunpowder residue on his hands.
What is the physical evidence and who gets shot in this case?
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theory that someone other than Mendoza, either Humberto or Lazaro, committed
In addition, the jury convicted Mendoza of first-degree felony murder.
Thus, the identity of the shooter in this case was not material. See Lowe v. State, 2
So. 3d 21, 30-31 (Fla. 2008). Further, particularly as Mendoza presented no
evidence at the evidentiary hearing to establish the shooter‘s identity, he has failed
to make any demonstration that had counsel presented a consistent defense theory
as to the identity of the shooter, codefendant Humberto Cuellar‘s trial testimony
would have been discredited, and, as a result, the jury would have acquitted
Mendoza of the underlying felonies.
We affirm the denial of relief on this claim.
2. Failure to Call Lazaro Cuellar as an Available Witness
Mendoza next argues that trial counsel provided ineffective assistance when,
though telling the jury during opening statement that he would present the
We know you are going to find out from the evidence that Mr.
Calderone, in fact, did fire his gun, three shots. And who gets hit by
that shot? Not Marbel Mendoza, but Humberto Cuellar, because he‘s
the one who did the shooting. That‘s who Mr. Calderone shot.
What is the physical evidence, again?
He had so many particles of gunpowder on him that the state‘s
expert stopped counting. So, you ask yourself during this trial does
Humberto Cuellar‘s story hold up or does the physical evidence hold
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testimony of codefendant Lazaro Cuellar at trial, he failed to do so. According to
Mendoza, Lazaro Cuellar would have testified that there had been no attempted
In denying this claim, the circuit court found that counsel did not present
Lazaro Cuellar as a witness on the basis of trial strategy. The circuit court denied
relief, as follows:
Defendant contends that counsel was ineffective by stating that they
would call Lazaro to testify during opening statements and then not
calling him during the trial. Mr. Suri, who this Court finds to be a
significantly credible witness, testified that the decision not to call
Lazaro was a strategic decision because they did not know if he could
be trusted to testify consistent with his deposition, since his brother
was a co-defendant. Additionally, he thought a reasonable doubt had
been established as to who the shooter was. Mr. Wax, who this Court
also finds to be a significantly credible witness, testified that the
decision not to call Lazaro was a strategic one, which was discussed
with Mr. Suri and the Defendant. He does not recall the reason for
this strategy; however, based on the testimony of Lazaro during the
evidentiary hearing, this strategic decision was supported. This Court
finds that Lazaro Cuellar has no credibility. He was impeached at
least 6 times during his brief testimony during the hearing.
Additionally, he stated he would not have testified during the trial of
Counsel was not ineffective by failing to call Lazaro, as the
court finds that it was a strategic decision. The trial transcript also
reveals that the decision not to call Lazaro was a strategic decision.
Mr. Wax stated:
Your Honor. I take exception with the state‘s position
that this was calculated. We intended to call Lazaro
Cuellar. That was our trial. Mr. Suri and I spoke
extensively before the trial, and our position was that it
would be to Mr. Mendoza‘s best interest if we did call
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As you know, when we conclude this trial we ask
corrections if we could speak with Mr. Mendoza. We
went to the jury room and spoke to Mr. Mendoza. The
purpose of that was to discuss the possibility of calling
Lazaro Cuellar to testify. After hearing the state‘s case,
the defense made a strategic decision that it would be in
Mr. Mendoza‘s best interest not to call Lazaro Cueallar
[sic]. We felt that would be in his best interest. We
made a strategic decision based on the state‘s case in
chief not to call Lazaro Cuellar, and that is our right.
Mendoza failed to demonstrate that the rationale in which counsel believed
he decided not to call Lazaro Cuellar was not supported by competent, substantial
evidence. See Burns v. State, 944 So. 2d 234, 242-43 (Fla. 2006). Nor did
Mendoza establish that counsel‘s strategy was unreasonable under prevailing
Moreover, Mendoza failed to demonstrate that Lazaro Cuellar was an
available witness at the time of trial. Lazaro testified at the evidentiary hearing
that he would not have been willing to testify at Mendoza‘s trial. Mendoza‘s
unsupported argument that Lazaro could have been compelled to testify is
insufficient to satisfy his burden. To the contrary, testimony at the hearing
reflected that the State was seeking to vacate Lazaro‘s sentence entered upon a plea
agreement due to his inconsistent testimony in a deposition given in Mendoza‘s
case on October 15, 1993. See also Notice of Appeal, State v. Cuellar, 657 So. 2d
972 (Fla. 3d DCA 1995) (No. 94-1253) (State‘s notice of appeal filed on May 26,
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1994, three months after Mendoza‘s conviction). Under the circumstances,
Mendoza has not demonstrated that Lazaro could have been compelled to testify
on Mendoza‘s behalf at the time of trial. See Metellus v. State, 900 So. 2d 491,
494 (Fla. 2005) ( ―[C]ompeting versions of ‗the truth‘ amount to a substantial
noncompliance with the terms of [a codefendant‘s] plea agreement and the trial
court did not place [the codefendant] in double jeopardy when it resentenced
him.‖). Mendoza has failed to demonstrate deficient performance or prejudice
resulting from counsel‘s decision not to call Lazaro Cuellar as a witness. See
Melton v. State, 949 So. 2d 994, 1003 (Fla. 2006) ( ―If a witness would not have
been available to testify at trial, then the defendant will not be able to establish
deficient performance or prejudice from counsel‘s failure to call, interview, or
investigate that witness.‖) (quoting Nelson v. State, 875 So. 2d 579, 583 (Fla.
The circuit court properly denied relief upon this claim.
3. Failure to Adequately Prepare and Present Gunshot Residue Evidence
During the guilt phase of trial, defense counsel used a criminalist with the
Metro-Dade Police Department, Gopinath Rao, to testify concerning the results of
gunshot residue testing on Lazaro and Humberto Cuellar. Evidence established
that the shooting occurred at approximately 5:45 a.m. Rao opined that it was more
likely than not that Lazaro fired the gun rather than simply handled a gun, on the
- 18 -
basis of the analysis of the particles found in the swab taken from Lazaro‘s hands
at 9 a.m. Rao similarly testified in a deposition taken pre-trial by the defense. Rao
testified that he relied upon an ―information sheet‖ included in the swab kit for the
time of the swabbing, and admitted during cross-examination that if the swabs
were taken at a different time, his opinion would be invalid. The State called
Technician Gallagher as a rebuttal witness; he testified that he swabbed Lazaro‘s
hands at 7:45 a.m. and Humberto‘s hands at 8:05 a.m., and that the times were
written on the outside of the evidence envelopes. Gallagher‘s testimony was
consistent with that provided in his deposition.
In rejecting this claim, the circuit court stated the following:
The Defendant alleges counsel was ineffective by failing to
properly prepare Criminalist Rao. Both Mr. Wax and Mr. Suri
testified that they made a mistake by looking at the wrong tag for the
times [the swabs were taken of the Cuellars‘ hands.] While the time
may have been wrong, Rao still testified that Humberto and Lazaro
both had gunshot residue on their hands and that it was more likely
than not that either man had fired a gun. Even if it were assumed that
counsel was ineffective, the Defendant did not show prejudice.
Lazaro‘s gun, with which [sic] Humberto used to hit the victim, was
recovered in the car at the hospital. It was not fired, but it did contain
the victim‘s hair. Humberto testified that Lazaro never left the car.
The Defendant presented no evidence at the evidentiary hearing that
either Humberto or Lazaro was the shooter.
We agree that Mendoza failed to demonstrate prejudice based upon
counsel‘s failure to recognize that Rao and Gallagher identified different times that
the swabbings were done. While Mendoza argues that counsel‘s deficient
- 19 -
performance permitted the State to discredit the defense and then emphasize to the
jury during closing argument that the defense attempted to mislead the jury, the
jury convicted Mendoza of felony murder. Thus, the identity of the perpetrator
who fired the gun was not relevant to the jury finding Mendoza guilty of firstdegree murder. We affirm the denial of relief on this claim.
4. Denial of Right to Counsel Based on Cumulative Effect
of Guilt-Phase Errors
Mendoza contends that the Court must grant relief upon the cumulative
effect of the errors committed by trial counsel during the guilt phase of trial. We
disagree. It is well established that ―where individual claims of error alleged are
either procedurally barred or without merit, the claim of cumulative error must
fail.‖ Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003); see also Schoenwetter v. State,
46 So. 3d 535, 562 (Fla. 2010) (citing cases). Thus, only ―[w]here multiple errors
are found, even if deemed harmless individually [has the Court stated that] ‗the
cumulative effect of such errors‘ may ‗deny to defendant the fair and impartial trial
that is the inalienable right of all litigants.‘ ‖ Hurst v. State, 18 So. 3d 975, 1015
(Fla. 2009) (quoting Brooks v. State, 918 So. 2d 181, 202 (Fla. 2005)).
Upon Mendoza‘s direct appeal, the Court found one error occurring during
the penalty phase where the trial court allowed evidence concerning pending
robbery charges against Mendoza. See Mendoza, 700 So. 2d at 677-78. That error
was held harmless. Id. The Court did not find trial error with respect to the guilt
- 20 -
phase, and, as discussed above, Mendoza‘s individual claims of ineffective
assistance of counsel at the guilt phase of trial are without merit. Mendoza has
failed to demonstrate that he was denied a fair and impartial guilt phase of trial.
See Everett, 54 So. 3d at 485.
B. Ineffective Assistance of Trial Counsel—Penalty Phase
Penalty phase claims of ineffective assistance of trial counsel are also
reviewed under Strickland‘s two-prong analysis and this Court‘s case law applying
that inquiry, as previously discussed. ―Penalty phase prejudice under the
Strickland standard is measured by whether the error of trial counsel undermines
this Court‘s confidence in the sentence of death when viewed in the context of the
penalty phase evidence and the mitigators and aggravators found by the trial
court.‖ Hurst, 18 So. 3d at 1013.
1. Failure to Adequately Investigate, Discover and
Present Mitigation Evidence
Mendoza argues that counsel failed to conduct any investigation to discover
and present mitigating evidence, including evidence of his frontal lobe
dysfunction, mental illness, experience as a refugee, extensive drug abuse, and
childhood in Cuba. Further, trial counsel failed to obtain records from Cuba and
talk with family members there, provide records to Dr. Toomer, conduct a
mitigation study, seek neurological testing and neuropsychological evaluation, and
have Mendoza evaluated for Post-Traumatic Stress Disorder.
- 21 -
We have previously set out the applicable principles that guide the Court‘s
consideration of ineffective assistance claims based upon counsel‘s alleged failure
to investigate and present mitigating evidence:
In these circumstances, to determine whether counsel was
ineffective, a court must examine not only counsel‘s alleged failure to
investigate and present possibly mitigating evidence, but the reasons
for doing so. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (―[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.‖) (quoting Strickland, 466 U.S. at 690-91[, 104 S.Ct.
2052] ); Rose v. State, 675 So. 2d 567, 572 (Fla.1996) (stating that in
evaluating the competence of counsel ―the actual performance of
counsel in preparation for and during the penalty phase proceedings,
as well as the reasons advanced therefor,‖ must be considered).
Moreover, here, [defendant] must prove his counsel‘s performance
actually ―deprived [him] of a reliable penalty phase proceeding.‖
Rutherford v. State, 727 So. 2d 216, 223 (Fla.1998).
Schoenwetter, 46 So. 3d at 555 (quoting Jones v. State, 998 So. 2d 573, 582 (Fla.
Facts pertinent to resolution of Mendoza‘s claim are as follows: At the
penalty phase, defense counsel presented the testimony of Mendoza‘s mother,
Nilia Mendoza, psychologist Dr. Jethro Toomer, and codefendant Humberto
Cuellar. Mrs. Mendoza testified as to the family‘s experiences in fleeing Cuba,
including the abuse they experienced in Cuba and the conditions at the Peruvian
Embassy. Dr. Toomer testified, in pertinent part, that Mendoza had reported a
- 22 -
psychiatric history when he was in Cuba beginning around age seven involving
―supposed experiences with multiple personalities‖ for which he received
treatments in Cuba but not in the United States; Mendoza fell in the 99th percentile
for chemical abuse; an extensive drug abuse history dating back to age nineteen,
whereby he used alcohol, marijuana, and crack cocaine to self-medicate untreated
symptoms as described by Dr. Toomer; some degree of brain damage or organic
impairment, which may be a factor in overall functioning and behavior;
―inferiority, poor self esteem, impulsivity and irrational behavior and that is
changes in mood shifts or behavioral changes from time to time‖; Mendoza had
experienced auditory and visual hallucinations and was in the 99th percentile with
respect to thought disturbance; antisocial tendencies; and self-depreciation. Dr.
Toomer also testified to his observation of Mendoza‘s gradual deterioration
between the time of his four visits, including heightened agitation, nervousness,
sweating, reported auditory and visual hallucinations. In conclusion, Dr. Toomer
testified that Mendoza suffers from ―very significant deficits in terms of his reality
testing.‖ Humberto Cuellar testified that the plan was to commit a robbery and not
a killing. In addition, the defense introduced Mendoza‘s childhood medical record
The jury recommended a sentence of death by a seven-to-five vote. At the
time of the Spencer hearing, trial counsel submitted a report prepared by Dr.
- 23 -
Eisenstein, a neuropsychologist appointed subsequent to the penalty phase to
evaluate Mendoza. Also admitted as part of the record was the deposition taken by
the State of Dr. Eisenstein. The State presented the testimony of Dr. Aguilar
Fuentes, a psychologist, in rebuttal to Dr. Eisenstein‘s report. Both doctors
conducted neuropsychological tests on Mendoza; while Dr. Eisenstein tested
Mendoza using English, Dr. Fuentes tested him in Spanish. Dr. Fuentes disagreed
with Dr. Eisenstein‘s conclusion that there was left hemisphere involvement
demonstrating mild impairment. Instead, she testified that some of Dr.
Eisenstein‘s results were obtained because the tests were given in English, which
she did not believe Mendoza spoke fluently. Dr. Fuentes concluded that Mendoza
was moderately impaired where a language barrier interferes with his
understanding or ability to express himself in English, thus making it appear that
he was impaired. Mendoza‘s mother also testified, briefly explaining to the trial
judge the family circumstances.
The trial court found no mitigating circumstances after giving little weight to
Mendoza‘s alleged drug use and minimal weight to his mental health claims as
nonstatutory mitigation. In sentencing Mendoza to death, the trial court found two
aggravating factors: (1) Mendoza was previously convicted of a violent felony, and
(2) the murder was committed while Mendoza was engaged in the commission of a
robbery and for pecuniary gain (aggravators merged).
- 24 -
In support of this claim, Mendoza presented testimony at the evidentiary
hearing from attorney Steven Potolsky, psychiatrist Dr. Eugenio Rothe,
psychologist Dr. Ricardo Weinstein, Dr. Debra Mash, a professor of neurology and
pharmacology, Beatrice Roman, a social worker living in Peru who works with
Cuban refugees, psychologist Dr. Jethro Toomer, and Dr. Thomas Hyde, a
specialist in behavioral neurology and neuropsychology.
Upon careful review of both the penalty-phase transcript and the evidentiary
hearing transcript, we agree with the circuit court that the jury and trial judge heard
the childhood, medical, and psychological information that Mendoza alleged
counsel failed to discover and present. As often stated, the presentation of
cumulative evidence in the postconviction proceedings does not provide a basis for
determining that trial counsel‘s performance was deficient. Kilgore v. State, 55
So. 3d 487, 504 (Fla. 2010). Rather than the failure to investigate and present
mitigating evidence, Mendoza takes issue with the manner in which trial counsel
presented the evidence at trial. This is not, however, a proper basis to establish
deficient performance on the part of trial counsel. See Everett, 54 So. 3d at 478
(―That there may have been more that trial counsel could have done or that new
counsel in reviewing the record with hindsight would handle the case differently,
does not mean that trial counsel‘s performance during the guilt phase was
deficient.‖) (quoting State v. Coney, 845 So. 2d 120, 136 (Fla. 2003)). In addition,
- 25 -
the fact that Mendoza later found an expert whose testimony may be more
favorable as to the degree of his mental status impairment does not establish that
trial counsel‘s investigation was deficient. See Anderson v. State, 18 So. 3d 501,
512 (Fla. 2009) (stating that trial counsel is not required to continue searching for
an expert who will give a more favorable mental status assessment). Indeed,
Mendoza‘s own legal expert testified at the evidentiary hearing that at the time of
Mendoza‘s trial, he also had used Dr. Toomer as a mental health expert in a capital
2. Opening the Door to Allow the State to Present Evidence of Mendoza’s
Pending Charges for Robbery with a Firearm
Mendoza next argues that trial counsel was ineffective during the penalty
phase, having opened the door for the State to present evidence of pending charges
against the defendant for robbery with a firearm.
Mendoza failed to properly raise this claim before the circuit court in his rule
3.851 motion. Accordingly, the claim is not reviewable for the first time on
appeal. See Hutchinson, 17 So. 3d at 703 n.5. We deny this claim as procedurally
barred. See Franqui v. State, 965 So. 2d 22, 32 (Fla. 2007).
Alternatively, we find determinative the Court‘s decision on direct appeal
addressing Mendoza‘s alleged trial court error arising from denial of his objection
to the testimony and motion for mistrial. See Mendoza, 700 So. 2d at 675-78. In
pertinent part, the Court addressed the substantive claim as follows:
- 26 -
[W]e conclude that it was proper to cross-examine Dr. Toomer as to
his knowledge of appellant‘s involvement in other robberies.
However, the trial court erred in overruling appellant‘s objection to
the State‘s question to Dr. Toomer during cross-examination and the
comment in the State‘s closing argument asking whether Dr. Toomer
was aware that the defendant had a pending trial in other robberies
using a firearm. This violated our prohibition against telling the jury
of any arrests or criminal charges arising from specific bad acts.
Hildwin[ v. State], 531 So.2d [124,] 127[ (Fla. 1988)].
We have found that erroneously admitted evidence concerning
a defendant‘s character in a penalty phase is subject to a harmless
error review under State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). See
Peterka v. State, 640 So. 2d 59, 70 (Fla.1994). We have reviewed the
record as to whether the error in permitting the question which
referred to the ―pending trial in other robberies‖ and ―using a firearm‖
in the cross-examination of Dr. Toomer and the argument by the State
which repeated that question were harmless beyond a reasonable
doubt. We have determined that the question and statement
concerning the pending charges were isolated rather than emphasized
and were not the focus of either the cross-examination or the
argument. The focus of both the cross-examination and the State‘s
argument was properly upon the extent of Dr. Toomer‘s knowledge of
appellant‘s history of ―prior areas of problems or difficulty,‖ upon
which Dr. Toomer testified on direct examination that he had relied in
forming his opinion that appellant could be rehabilitated.
Furthermore, in contrast to this isolated reference to the pending trial
for other robberies, the jury heard live testimony from a witness
named Robert Street, who testified that he had been the victim of a
robbery. Evidence was presented that on April 16, 1993, appellant
was convicted in connection with that same robbery of charges of
robbery with a firearm, aggravated battery, burglary of a conveyance
with a firearm, and use of a firearm in the commission of a felony.
Mr. Street identified appellant as the person who had the gun and who
participated in beating him during the commission of those crimes. It
was the convictions for armed robbery and possession of a firearm in
the commission of a felony in the robbery and the beating of Mr.
Street which the trial court used as the basis for the prior violent
felony aggravator. The test for harmless error is whether there is a
reasonable possibility that the error affected the verdict. DiGuilio.
- 27 -
We conclude on the basis of this record that there is no reasonable
possibility that the isolated references to the pending charges affected
appellant‘s sentence of death, and therefore the error was harmless
beyond a reasonable doubt.
700 So. 2d at 677-78.
In light of the Court‘s resolution of the substantive issue on direct appeal,
Mendoza‘s attempt to raise this claim as one of ineffective assistance is improper.
As explained in Conde v. State, 35 So. 3d 660 (Fla. 2010), ―[b]ecause this Court
has already held that the exclusion of [the witness‘s] testimony was harmless error,
[defendant] cannot establish prejudice in his ineffective assistance of counsel
claim.‖ Id. at 664 (citing Cox v. State, 966 So. 2d 337, 347-48 (Fla. 2007)).12 The
claim is denied.
3. Calling Codefendant Humberto Cuellar as a Witness
Mendoza argues that by calling codefendant Humberto Cuellar to testify as a
witness at the penalty phase, trial counsel provided ineffective assistance.
Humberto testified that there was no intent to kill the victim, but only an intent to
commit a robbery. According to Mendoza, presenting such testimony, inconsistent
12. As noted on direct appeal, were the case remanded for a new penalty
phase, ―the State would be entitled to introduce as aggravating factors appellant‘s
subsequent guilty pleas and sentences in four other cases for multiple counts of
robbery, aggravated battery, kidnapping, and firearms offenses.‖ Mendoza, 700
So. 2d at 678 n.2 (citing cases). The same holds true here.
- 28 -
with the defense‘s guilt-phase theory of the case, only served to bolster Humberto
Cuellar‘s credibility and diminish that of the defendant.
Mendoza did not raise this claim before the circuit court as is now argued. 13
Accordingly, having been raised for the first time on appeal, the claim is denied as
procedurally barred. See Franqui, 965 So. 2d at 32. Moreover, the jury previously
found Mendoza guilty of attempted armed robbery. Mendoza does not address
how he was prejudiced where trial counsel in essence accepted the jury‘s verdict
and attempted to demonstrate that Mendoza did not intend to commit murder, what
the jury presumably would have seen as the more egregious act.
C. Fairness of Mendoza’s Rule 3.851 Evidentiary Hearing
Based upon the circuit court‘s actions in denying his motion to disqualify
and excluding the admission of certain proffered testimony and documentary
evidence at the hearing, Mendoza argues that he was denied a full and fair
evidentiary hearing. We disagree.
1. Motion to Disqualify
Florida Rule of Judicial Administration 2.330 controls the process governing
disqualification of a presiding judge. Subdivision (f) provides:
13. Mendoza argued in his amended postconviction relief motion that by
presenting Humberto Cuellar‘s testimony at the penalty phase, trial counsel
effectively conceded the contemporaneous felony/pecuniary gain aggravator.
There is no question, however, that the jury previously convicted Mendoza of
attempted armed robbery.
- 29 -
Determination – Initial Motion. The judge against whom an initial
motion to disqualify under subdivision (d)(1) is directed shall
determine only the legal sufficiency of the motion and shall not pass
on the truth of the facts alleged. If the motion is legally sufficient, the
judge shall immediately enter an order granting disqualification and
proceed no further in the action. If any motion is legally insufficient,
an order denying the motion shall immediately be entered. No other
reason for denial shall be stated, and an order of denial shall not take
issue with the motion.
Fla. R. Jud. Adm. 2.330(f). 14 Under subdivision (g), however, the standard differs
for successive motions:
If a judge has been previously disqualified on motion for alleged
prejudice or partiality under subdivision (d)(1), a successor judge shall
not be disqualified based on a successive motion by the same party
unless the successor judge rules that he or she is in fact not fair or
impartial in the case. Such a successor judge may rule on the truth of
the facts alleged in support of the motion.
Fla. R. Jud. Adm. 2.330(g). In addition, the rule provides that the motion must be
filed within a reasonable time not to exceed ten days after the discovery of the facts
constituting the basis for the motion. Fla. R. Jud. Adm. 2.330(e).
Substantively, the disqualification of a judge is governed by section 38.10,
Florida Statutes (2010). This Court‘s review of a trial judge‘s determination on a
motion to disqualify is de novo. Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla.
2004). ―Whether the motion is legally sufficient is a question of law.‖ Parker v.
State, 3 So. 3d 974, 982 (Fla. 2009).
14. Subdivision (d)(1) of rule 2.330 provides that a motion to disqualify
shall show ―that the party fears that he or she will not receive a fair trial or hearing
because of specifically described prejudice or bias of the judge.‖
- 30 -
The Court‘s most recent remand order directed the circuit court to appoint a
new judge to preside over Mendoza‘s postconviction proceeding and that a new
evidentiary hearing be held. See Mendoza, 964 So. 2d at 128 & n.7 (noting that
the former judge presiding over Mendoza‘s postconviction case was then
deceased). Circuit Court Judge Dava J. Tunis thereafter was assigned. An
evidentiary hearing was later scheduled to begin June 9, 2008. During the sixth
day of the hearing, on June 18, 2008, Mendoza‘s counsel expressed concern for the
first time with respect to the judge‘s impartiality. Counsel requested leave to file a
written motion to disqualify based upon comments relating to defense counsel‘s
proffer of testimony of his gunshot residue expert witness and pertaining to the
claim of ineffective assistance of trial counsel for failing to obtain an independent
gunshot residue expert. Judge Tunis granted counsel‘s request and ordered that the
written motion be filed by the following week. 15
Mendoza filed his written motion to disqualify on June 24, 2008, citing
Florida Rule of Judicial Administration 2.330 (Disqualification of Trial Judges).
Arguing that the circuit judge had prejudged at least three issues raised in his
amended motion, Mendoza identified the following statements made by Judge
Tunis: (1) that trial counsel made a strategic decision to call as a witness the State‘s
15. The circuit court also addressed how the case would proceed
procedurally: if the motion to disqualify was granted, the case would be reassigned
to a different judge, and if denied, the hearing would resume.
- 31 -
gunshot residue expert; (2) that defendant spoke ―perfect‖ English and was
―intelligent,‖ ―well educated,‖ and ―articulate‖; and (3) that the standards for
representation were different than they are now, without hearing testimony from
Mendoza‘s witness tendered as a legal expert.
The circuit judge, in ruling upon Mendoza‘s motion to disqualify, treated the
motion as an initial one as argued by Mendoza and held that the motion was legally
insufficient. The State, however, argued that because this Court ordered the
assignment of a new judge upon the first remand to the circuit court, see Mendoza
v. State, 817 So. 2d 848 (table), Nos. SC01-735 & SC01-1963 (Fla. order filed
Apr. 3, 2002), the Court effectively found that Mendoza‘s first motion to disqualify
should have been granted. Under the State‘s reasoning, the second motion to
disqualify constituted a successive motion.
First, we observe that Mendoza‘s argument before this Court is limited to the
first statement identified in his motion to disqualify, i.e., that the circuit court had
predetermined that trial counsel‘s decision to not present the testimony of an
independent gunshot residue expert was reasonable trial strategy. Accordingly, we
conclude that Mendoza has abandoned the disqualification claim with respect to
the second and third statements previously identified in his motion to disqualify. 16
16. To the extent Mendoza seeks to incorporate by reference the other
factual bases and arguments thereto raised in his motion to disqualify for purposes
of appeal, having cited in his brief the record pages of the motion to disqualify and
- 32 -
Second, we also observe that with the assignment of a new judge following
the Court‘s first remand order, Mendoza explicitly sought to avail himself of the
rule permitting reconsideration of specific rulings made by the first judge presiding
over the amended motion. 17 That is, while the Court did not address the basis for
the reassignment order, Mendoza treated the Court‘s order as a determination that
his motion to disqualify should have been granted. In his subsequent attempt to
disqualify Judge Tunis, however, Mendoza relied upon the provision governing
initial motions, see Fla. R. Jud. Adm. 2.330(f), which places a less arduous burden
on the movant.18 The Court does not sanction such jockeying of positions within
the course of continuing litigation. Therefore, although the circuit court applied
the standard more favorable to Mendoza, we decline to accede to Mendoza‘s
providing no argument, the rules of appellate procedure do not authorize that
practice. See Fla. R. App. P. 9.210(b)(5) (providing that the initial brief shall
contain ―[a]rgument with regard to each issue including the applicable appellate
standard of review‖). We deem abandoned those other bases previously alleged in
support of disqualification. See Chamberlain, 881 So. 2d at 1103.
17. In April 2002, when Mendoza sought such relief, the Florida Rules of
Judicial Administration had not yet undergone renumbering. The applicable rule at
the time, rule 2.160(h), is now designated rule 2.330(h). See In re Amendments to
the Florida Rules of Judicial Administration—Reorganization of the Rules, 939 So.
2d 966 (Fla. 2006).
18. To disqualify a judge upon an initial motion, the movant need only
demonstrate that the facts alleged, which must be assumed to be true, would cause
the movant to have a well-founded fear that he or she will not receive a fair trial at
the hands of that judge.
- 33 -
changing position dependent upon the circumstances in which the matter arises.
Since Mendoza sought to obtain the benefits of having successfully challenged the
judge‘s impartiality by his initial motion to disqualify, we review the denial of the
instant motion under the standard applicable to successive motions.
Before the circuit court, Mendoza made the following argument in seeking
to disqualify Judge Tunis:
One of the issues before the Court is whether trial counsel for
Mr. Mendoza was ineffective for failing to hire an independent
gunshot residue (GSR) expert to assist in investigating the gunshot
residue analysis work done by Metro-Dade Police Department (now
the Miami-Dade Police Department) criminologist Gopinath Rao prior
to making the decision to put Mr. Rao on the stand as a defense expert
and the defense‘s sole witness in the penalty phase of Mr. Mendoza‘s
1994 trial. In order to prove the prejudice prong of the Strickland
standard, undersigned counsel sought to elicit the testimony of an
independent gunshot residue expert, Celia Hartnett, who began her
testimony on June 18, 2008. The State made several evidentiary
objections to Ms. Hartnett‘s testimony. During argument on one of
the State‘s objections, the Court inquired of counsel for Mr. Mendoza
the reason for eliciting Ms. Hartnett‘s testimony. The Court asserted
that trial counsel had made a ―strategic decision‖ to call Rao as a
defense witness, and that trial counsel had testified to that effect
earlier in the hearing. When counsel explained that it was to prove the
prejudice prong of the claim that trial counsel was ineffective for
failing to consult an independent gunshot residue expert pursuant to
19. Mendoza‘s reference to the penalty phase, as opposed to the guilt phase,
is in error. In his motion for postconviction relief, Mendoza‘s claim of ineffective
assistance with respect to counsel‘s investigation and presentation of the gunshot
residue evidence pertained to the guilt phase of trial, when the evidence was
presented. As observed previously, and necessarily addressed by the parties in
light of Mendoza‘s penalty-phase ineffective assistance of counsel claims,
evidence at that stage of trial was elicited from three individuals, including
Mendoza‘s mother, Dr. Toomer, and Humberto Cuellar.
- 34 -
Strickland, the Court repeatedly stated that trial counsel had made a
―strategic decision‖ to call Rao and also gave reasons as to why trial
counsel‘s strategy was reasonable. Since the issue of whether trial
counsel‘s decision to call Rao was a valid strategy is germane to the
deficient performance prong of Strickland, the announcement by the
Court that trial counsel made a ―strategic decision‖ amounts to a
predetermination of the issues of the case, prior to the completion of
the hearing and the submission of closing argument. As such, Mr.
Mendoza has a reasonable fear that he will not receive a fair hearing
before this Court because of actual bias and the appearance of bias by
The record does not support Mendoza‘s recitation of the facts upon which he
then relies to demonstrate prejudice. In the course of considering the State‘s
objection to the admission of testimony from one gunshot residue expert about the
credibility and quality of work of the defense‘s former gunshot residue expert,
Judge Tunis did not make a finding that trial counsel made a strategic decision
which was reasonable. Rather, the transcript reflects that the circuit judge was
recalling trial counsel‘s earlier testimony. We affirm the denial of the motion to
2. Evidentiary Rulings
Mendoza also argues that adverse evidentiary rulings upon defense witness
testimony and defense exhibits further demonstrate that he did not receive a full
and fair hearing. However, adverse rulings by a judge are generally considered
legally insufficient to warrant a judge‘s disqualification. Ault v. State, 53 So. 3d
- 35 -
175, 204 (Fla. 2010). With respect to the circuit court‘s evidentiary rulings, ―[i]t is
well settled that ‗[t]he admissibility of evidence is within the sound discretion of
the trial court, and the trial court‘s determination will not be disturbed on appellate
review absent a clear abuse of that discretion.‘ ‖ Rimmer v. State, 59 So. 3d 763,
774 (Fla. 2010) (quoting Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)).
Mendoza called as a witness Steven Potolsky, an attorney who has
specialized in capital defense since approximately 1987. Mendoza sought to elicit
testimony pertaining to trial counsel‘s actions with respect to the following: (1)
gunshot residue on Lazaro and Humberto Cuellar; (2) the presentation of
inconsistent and mutually exclusive defense theories offered by trial counsel; (3)
failure to call Lazaro Cuellar; (4) failure to investigate mitigation; (4) ―opening the
door‖ to inadmissible and prejudicial evidence in penalty phase; and (5) the lack of
meaningful experience and training and the failure to consult with more
experienced counsel. Mendoza argues that this type of testimony is similar to that
allowed in State v. Riechmann, 777 So. 2d 342 (Fla. 2000), where Mr. Potolsky
testified and upon which testimony this Court expressly relied. Id. at 348. While
not addressed by either party, the evidentiary hearing transcript reflects that the
- 36 -
circuit court allowed Mr. Potolsky‘s testimony in an abundance of caution.
Accordingly, this claim is without merit. 20
Mendoza also called Dr. Holly Ackerman to testify as a defense expert. She
has a Ph.D. in international relations and has specialized in the study of various
refugee migrations out of Cuba during the 1980s and 1990s. The purpose of her
testimony was to show that the experiences of Mendoza and his family were
consistent with established historical fact and those of other refugees interviewed
by Dr. Ackerman. Mendoza argues that this information would have assisted trial
counsel in understanding Mendoza‘s early life and ―to help the jury understand the
traumatic experiences he underwent during his teenage years.‖ The circuit court
also admitted her testimony in an abundance of caution, except for opinion
testimony. Because Dr. Ackerman was a student at the time of Mendoza‘s trial
and therefore would have been unavailable to testify as an expert, the circuit court
did not abuse its discretion in rejecting Dr. Ackerman‘s opinion testimony. The
claim for relief is denied.
Turning to the testimony and documentary evidence not admitted at the
hearing, we first conclude that the circuit court did not abuse its discretion in
20. The fact that the same expert witness testified in an unrelated
proceeding, see State v. Riechmann, 777 So. 2d 342 (Fla. 2000), does not establish
the admissibility of his or her testimony in another case. Riechmann did not
address whether Mr. Potolsky‘s testimony was properly admitted at the evidentiary
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excluding the testimony of Odalys Rojas. Mendoza sought to present her
testimony on the issue of counsel‘s failure to investigate and present mitigating
evidence. Ms. Rojas would have testified that she spoke with Mendoza‘s family
members, friends, and teachers who were available at the time of trial and would
have been willing to testify had they been contacted by counsel. Mendoza openly
admits that Ms. Rojas would have testified to what she had been told by the
various individuals; Mendoza argues that this testimony was not hearsay because it
would not have been offered for the truth of the matter asserted, but to demonstrate
the availability of the witnesses to trial counsel. We disagree, and observe that
Mendoza has offered no explanation why repeating statements made to the witness
to establish the fact at issue, that there were witnesses available that counsel had
not contacted, would not constitute inadmissible hearsay.
Mendoza also argues that the circuit court erroneously excluded the
testimony of Alexander Suarez. Mendoza contends that the State could have
impeached Mr. Suarez based upon his numerous convictions. However, Mr.
Suarez refused to answer the State‘s questions during cross-examination. Thus, the
State could not confront Suarez pertaining to the subject of his testimony and was
denied a fair opportunity to rebut the alleged evidence that Humberto Cuellar
admitted to Mr. Suarez that he and not Mendoza had shot the victim. We reject
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Mendoza‘s argument that the State could, nonetheless, impeach Mr. Suarez based
upon his numerous convictions.
With respect to the exclusion of certain physical evidence, the circuit court
also did not abuse its discretion. At the evidentiary hearing, Mendoza sought to
have admitted Quantitative Electroencephalogram (QEEG) test results. Because
such a test had not passed the Frye test21 at the time Mendoza was tried, the circuit
court granted the State‘s motion to exclude on the basis that the issue was whether
counsel rendered ineffective assistance in 1992 at the time of trial. The circuit
court did not abuse its discretion.
Next, Mendoza argues that he was entitled to present into evidence the
materials relied upon by his experts. However, as stated by the Court in Linn v.
Fossum, 946 So. 2d 1032 (Fla. 2006),
Florida courts have routinely recognized that an expert‘s testimony
―may not merely be used as a conduit for the introduction of the
otherwise inadmissible evidence.‖
The rationale for this prohibition is twofold. First, allowing the
presentation of otherwise inadmissible evidence merely because an
expert relied on it in forming an opinion undermines the rules of
evidence that would have precluded its admission. . . .
Second, testimony that serves as a conduit for inadmissible
evidence is inadmissible under section 90.403, Florida Statutes
(2005), because its probative value is ―substantially outweighed by the
danger of unfair prejudice, confusion of issues [or] misleading the
21. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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Id. at 1037-38 (quoting Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5th DCA 1997);
Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997)). Thus, the circuit
court did not abuse her discretion in excluding admission of the otherwise
inadmissible hearsay materials relied upon by the experts in reaching their
Mendoza also argues that the circuit court erroneously excluded documents
from trial counsel‘s file. The only documents excluded were two attorney billing
statements which the testimony established were not complete and were therefore
not an accurate reflection of the work counsel had performed. Mendoza has not
demonstrated an abuse of discretion.
Based on the foregoing, we affirm the circuit court‘s order denying
Mendoza‘s rule 3.851 amended motion.
It is so ordered.
LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
CANADY, C.J., and PARIENTE, J., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Dade County,
Dava J. Tunis, Judge – Case No. F92-994C
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Neal A. Dupree, Capital Collateral Regional Counsel, and Rachel L. Day,
Assistant CCR Counsel, Southern Region, Fort Lauderdale, Florida,
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
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