Agatheas v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
NICHOLAS AGATHEAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D06-4870
[December 16, 2009]
DAMOORGIAN, J.
After being tried and convicted of first degree murder with a firearm,
Nicholas Agatheas (“the defendant”) appeals. We affirm.
On September 20, 2006, the defendant was arrested for murdering
Thomas Villano (“the victim”). The State’s theory at trial was that the
defendant hated the victim and retaliated against the victim for allegedly
raping one of the defendant’s friends. The State argued that, on the
night of the murder, the defendant showed up at the victim’s house and
fatally shot him eight times in the head and neck.
The defendant’s former girlfriend testified that weeks prior to the
murder, she walked in on the defendant in her bedroom dressed in black
clothes wearing a bandana on his face and holding a revolver-type gun in
his hand. She described the defendant’s appearance as that of a
“gangster.” When she started to laugh, he grew very serious and told her
that this was the way he was now.
On the day of the murder, the defendant and the former girlfriend
fought, and the defendant made arrangements to stay at a friend’s house
that night. The former girlfriend then went to work and did not return
home until later that evening. Shortly after arriving home, she noticed
that the backpack in which the defendant stored his gun was missing
from her closet. She had not spoken to the defendant since their fight
earlier that day. Several hours after retiring to bed that night, she was
awoken by the defendant’s phone call. According to the former girlfriend,
the defendant called her from a pay phone and asked her to contact his
friend and arrange for his friend to pick him up. The former girlfriend
agreed and made the call.
A few nights later, while the former girlfriend and the defendant were
watching TV, a news story aired about the victim’s murder. At this time,
the defendant bragged to the former girlfriend that he murdered the
victim because the victim raped one of his friends. He also admitted to
her that he took off his t-shirt and left it at the scene of the crime. After
murdering the victim, he drove the victim’s car around listening to music
very loudly before abandoning it.
During the investigation of the murder, the police recovered a black tshirt with the defendant’s DNA in the front yard of the victim’s residence.
The police also recovered the victim’s vehicle near the pay phone the
defendant used to call his former girlfriend on the night of the murder.
The radio in the recovered vehicle was set at a high volume. Although
there was evidence connecting the defendant to the crime, he was not
charged at that time. It was not until the former girlfriend came forward
years later that there was sufficient evidence to charge the defendant.
With the former girlfriend’s statement, the police arrested the defendant
for the murder. At the time of the arrest, the defendant had in his
possession a backpack, which contained, among other things, a .45
caliber revolver and latex gloves nestled inside another pair of gloves.
At trial, the State introduced photographs of the contents of the
defendant’s backpack, which included the .45 caliber revolver, latex
gloves nestled inside another pair of gloves, a flashlight, batteries, a
lighter, a screwdriver, and a bandana. However, as established by
uncontroverted expert testimony, the gun used to murder the victim was
a “.38 caliber gun or a .38 class gun.” The defendant’s counsel did not
object at trial to the introduction of the photographs.
On appeal, the defendant claims that his trial counsel was ineffective
for failing to object to the photographs of the .45 caliber revolver and the
other contents of his backpack. The defendant also argues that the
introduction of the photographs of the .45 caliber gun was highly
prejudicial and that it was fundamental error for the trial court to admit
this photograph because the State failed to connect the revolver to the
murder.
We first address the defendant’s ineffective assistance of counsel
claim. The defendant argues that his trial counsel was ineffective for
failing to object to photographs of the .45 caliber revolver and other items
recovered from his backpack, and that the facts giving rise to this claim
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are apparent on the face of the record. See Jones v. State, 815 So. 2d
772, 772 (Fla. 4th DCA 2002) (“[I]neffective assistance of counsel will
only be addressed on direct appeal for the first time when the facts giving
rise to the claim are apparent on the face of the record, a conflict of
interest is shown, or prejudice to the defendant is shown.”).
An ineffective assistance of counsel claim is a mixed question of law
and fact that is subject to de novo review. Bowman v. State, 748 So. 2d
1082, 1083–84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida
Supreme Court cited the U.S. Supreme Court’s ineffective assistance of
counsel test in Strickland v. Washington, 466 U.S. 668 (1984), and noted
the heavy burden a defendant faces in order to prevail on an ineffective
assistance of counsel claim:
[I]n ineffective assistance of counsel claims two requirements
must be satisfied: (1) the claimant must identify a particular
act or omission of the lawyer that is outside the broad range
of reasonably competent performance u n d e r prevailing
professional standards, a n d (2) the clear, substantial
deficiency shown must further be shown to have affected the
fairness and reliability of the proceeding so that confidence
in the outcome is undermined. As to the first prong, the
defendant must establish that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment. There is
a strong presumption that trial counsel's performance was
not ineffective.
994 So. 2d 1094, 1099 (Fla. 2008) (citations and quotation marks
omitted).
As to the first prong of the Strickland test, as cited in Pearce, the
defendant argues that his trial counsel should have objected to the
admissibility of the photographs because the State failed to show how his
backpack contents were linked to the murder, a n d th e evidence
suggested that the defendant had a propensity to engage in criminal
activities. We disagree and conclude that the photographs were relevant
to corroborate the former girlfriend’s testimony. See Czubak v. State, 570
So. 2d 925, 928-29 (Fla. 1990); Williams v. State, 834 So. 2d 923, 926
(Fla. 3d DCA 2003), rev’d on other grounds, 863 So. 2d 1189 (Fla. 2003)
(citing Allen v. State, 662 So. 2d 323, 327 (Fla.1995)); Kirby v. State, 625
So. 2d 51, 53 (Fla. 3d DCA 1993) (stating that a photograph is
admissible if relevant to an issue at trial, either independently or to
corroborate other evidence, unless the probative value is outweighed by
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undue prejudice).
On several occasions throughout the trial, the
defendant’s trial attorney attacked the former girlfriend’s credibility,
arguing, among other things, that she fabricated the story after a private
investigator leaked information to her. The .45 caliber revolver and
bandana recovered from the defendant’s backpack corroborated her
testimony regarding her observations around the time the crime was
committed. The photographs of these items were, therefore, relevant to
her credibility. We also conclude that the photos of the latex gloves were
relevant and admissible because latex gloves like the ones found in the
defendant’s backpack were found along the path from the victim’s vehicle
to the pay phone that the defendant used to contact the former girlfriend
on the night of the murder. The defendant’s trial attorney was not
ineffective for failing to object to evidence that we conclude was relevant
and admissible.
Although we have not found, and the State has not identified, any
evidence connecting the flashlight, batteries, lighter, and screwdriver to
the murder, we conclude that the erroneous admission of photographs of
these items did not undermine confidence in the outcome of this cause
and that the admission of this evidence was harmless. See State v.
DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Accordingly, we hold that
the defendant has not stated a claim for ineffective assistance of counsel
regarding the trial attorney’s failure to object to these items.
Having concluded that the photographs of the .45 caliber revolver and
latex gloves were relevant and admissible, and that the admission of the
other photographs was harmless error, we n e e d not address the
defendant’s claim that the admission of these photographs in evidence
constitutes fundamental error.1
We find no merit to any of the other issues raised.
Affirmed.
MAY and CIKLIN, JJ., concur.
The defendant correctly notes that fundamental error is the appropriate
standard of review for this issue. Although a preserved argument regarding the
admissibility of evidence is reviewed for abuse of discretion, the issue was not
preserved for appellate review because no contemporaneous objection was
made at trial; an unpreserved argument is reviewed only for fundamental error.
See State v. Calvert, 15 So. 3d 946, 948 (Fla. 4th DCA 2009).
1
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*
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach
County;
Krista
Marx,
Judge;
L.T.
Case
No.
502005CF006013AXXXXMB.
Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for
appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali,
Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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