Serrano v. State

Citations: 64 So. 3d 93; 36 Fla. L. Weekly Supp. 108; 2011 Fla. LEXIS 619; 2011 WL 904071Docket: No. SC07-1434

Court: Supreme Court of Florida; March 17, 2011; Florida; State Supreme Court

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Nelson Serrano appeals his convictions for first-degree murder and death sentences. He was indicted on May 17, 2001, for the murders of George Gonsalves, Frank Dosso, Diane Patisso, and George Patisso, which occurred on December 3, 1997, at Erie Manufacturing and Garment Conveyor Systems in Bartow. Gonsalves was a business partner of Serrano, while Frank Dosso, Diane Patisso, and George Patisso were related to another partner, Felice (Phil) Dosso. Serrano, a dual citizen of the U.S. and Ecuador, was arrested in Ecuador in 2002 and extradited to the U.S.

During the 2006 trial, evidence revealed that in the 1960s, Phil Dosso and Gonsalves founded a tool and die business, which transitioned to Garment Conveyor Systems in the 1980s with Serrano joining as a partner. Disputes arose over finances, including Serrano’s failure to pay $75,000 to each partner and disagreements about asset distribution, leading to tensions. In the summer of 1997, Serrano's son was fired, and Serrano opened a separate business checking account, depositing over $200,000 from Erie. He was eventually removed as president of the company, which escalated conflicts, particularly with Gonsalves.

Witnesses testified about the deteriorating relationships, including Serrano expressing a desire to kill Gonsalves. On the night of the murders, Gonsalves was working late at the Erie facility, and employees noted that he was the only one left when they departed. Gonsalves was ultimately found dead, along with the other victims. Family members became concerned when they could not reach Frank Dosso and decided to check on them at Erie.

Phil and Nicoletta Dosso discovered their daughter, Diane Patisso, deceased upon entering Erie. Phil called 911 and found three more bodies in Frank Dosso's office: George Gonsalves, George Patisso, and Frank Dosso. Law enforcement arrived at 7:36 p.m. to find three parked cars: those of Phil, Diane, and George. Inside, they recovered twelve shell casings—eleven from a .22 caliber and one from a .32 caliber. All victims had been shot execution-style in the head with .22 bullets, and Diane was also shot with a .32 bullet. Although the murder weapons were never found, evidence linked Nelson Serrano to .22 and .32 firearms.

In Frank Dosso’s office, investigators found a blue vinyl chair with shoe impressions and a dislodged ceiling tile. This office had previously belonged to Serrano. Witness David Catalan testified to seeing Serrano with a gun and moving ceiling tiles. Velma Ellis, an Erie employee, stated the chair was not used and was positioned under a desk before she left work on December 3, 1997. Shoe impression analyses matched Serrano's shoes.

The prosecution theorized that Serrano hid a .32 caliber gun in the ceiling and retrieved it the night of the murders. After killing the three men, he shot Diane when she entered. Although Serrano had previously told an FDLE agent about hiding guns in his office ceiling, no fingerprints or DNA were found at the scene. Following the discovery of the victims, law enforcement focused on Serrano, who returned from a business trip on December 4, 1997. Upon being interviewed, Serrano described his whereabouts and suggested the murders might be revenge related to business disputes. Investigators confirmed his alibi with meetings in Atlanta on December 3 and reviewed hotel surveillance footage.

Serrano was recorded in the Atlanta hotel lobby at 12:19 p.m. and again at 10:17 p.m. on December 3, 1997, wearing the same clothing. His nephew, Alvaro Penaherrera, testified that Serrano asked him multiple times to rent cars discreetly. On October 29, 1997, Serrano drove Penaherrera to Orlando airport to pick up a rental car, which Penaherrera returned on October 31, 1997, without knowing who returned it afterward. Around Thanksgiving, Serrano requested another rental under Penaherrera’s name for a visitor from Brazil. Penaherrera reserved a car for December 3, 1997, and confirmed the reservation with Serrano that morning. Penaherrera rented the car, parked it at the airport, and informed Serrano of its location and key hiding spot. 

On December 4, Serrano told Penaherrera the car was in Tampa and proposed that he return it there, promising to pay off Penaherrera’s credit card bill in return. Penaherrera complied and returned the car at 2:10 p.m. that day. Later, Serrano informed Penaherrera about a murder case and warned him not to disclose information about the rentals, as it could jeopardize his marriage and implicate him in the murders. In June 2000, Penaherrera, along with his girlfriend and brother, was subpoenaed to testify before a grand jury, and they stayed at Serrano's house the night before. Serrano advised Penaherrera to misrepresent the rental as for a lost contact. Law enforcement later seized shoes given by Serrano to Penaherrera, which matched impressions at the murder scene. After testifying, Serrano sold his assets and moved to Ecuador. The State provided evidence of Serrano's travel from Orlando to Atlanta on December 2, 1997.

Serrano allegedly traveled to Florida on the day of the murders using two aliases: Juan Agacio and John White. The State presented evidence suggesting that he flew from Atlanta to Orlando under the alias Juan Agacio, drove a rental car to Bartow, where he committed the murders, then returned the car to Tampa airport and flew back to Atlanta as John White. Videotape evidence placed Serrano in the La Quinta Inn lobby in Atlanta shortly after noon on December 3, 1997. Contrary to his claim of being incapacitated by a migraine, records indicated that a passenger named Juan Agacio boarded a flight to Orlando at 1:36 p.m. and that Serrano's fingerprint was found on the parking ticket from the Orlando airport, showing he left at 3:49 p.m. Additional connections included Serrano's son named Juan Carlos Serrano, and the rental car's reservation date coinciding with the ticket purchase date for the flight. 

Witness John Purvis reported seeing a man in a suit near Erie’s building that evening, fitting Serrano's description. Later that evening, at 7:28 p.m., Serrano, under the name John White, arrived at Tampa airport and checked in for a flight back to Atlanta. He was seen on videotape at the La Quinta Inn in Atlanta at 10:17 p.m., wearing the same clothes from earlier. Afterward, he made calls regarding the return of the rental car, which had been driven a distance consistent with the timeline of the murders. While in custody, Serrano denied involvement and suggested alternative theories about the murders, implicating a mafia hitman or a business rival.

Serrano's case centers on his alleged involvement in a murder plot orchestrated by a hitman known as John, who was owed money by the Dosso and Gonsalves families. Serrano recounted to inmate Jones that he and the hitman traveled to Tampa and Orlando, where John purchased tickets under assumed names. The hitman intended to confront the business partners on Halloween, but inclement weather led to the business being closed. Serrano's fingerprint was found on a parking ticket, which he claimed was planted by a law enforcement agent. Following the Halloween incident, law enforcement began investigating and noted a similar travel pattern linked to the December 3, 1997, murders, including Serrano's trip to Charlotte just before Halloween.

The defense argued that Serrano was in an Atlanta hotel during the murders and highlighted the absence of forensic evidence connecting him to the crime scenes, noting signs of robbery, such as missing valuable items. Despite these defenses, the jury convicted Serrano on four counts of first-degree murder. During the penalty phase, victim impact statements were presented, and it was established that Serrano was 59 years old with no prior criminal record. The defense noted his good behavior while incarcerated. The jury recommended a death sentence by a narrow margin.

At the Spencer hearing, various witnesses, including some via videotape from Ecuador, testified on Serrano's behalf. On June 26, 2007, the trial court sentenced him to death for each murder, citing significant aggravating factors such as premeditation and commission of other felonies, while also recognizing several mitigating factors, including Serrano's lack of a criminal history, age, educational performance, and positive behavior in custody. Ultimately, the trial court found the aggravating circumstances outweighed the mitigating factors.

Serrano's appeal raises nine issues: 1) the sufficiency of circumstantial evidence for his convictions; 2) the admissibility of his statements to FDLE Agent Tommy Ray; 3) the trial court's denial of motions to dismiss the indictment and divest jurisdiction; 4) alleged prosecutorial misconduct; 5) the denial of a change of venue; 6) the admissibility of the State's bloodstain pattern expert's testimony; 7) improper cross-examination of character witnesses about collateral crimes at the Spencer hearing; 8) the submission of the avoid arrest aggravator to the jury; and 9) the constitutionality of Serrano's death sentence. Additionally, the appeal questions the proportionality of the death sentences. The court found that none of these issues warranted relief.

Regarding the sufficiency of evidence, Serrano contends the trial court should have granted his motion for judgment of acquittal, which was reviewed under a de novo standard. A motion should only be granted if no reasonable jury could sustain a view favorable to the opposing party. In cases based solely on circumstantial evidence, the State must present evidence that excludes every reasonable hypothesis of innocence. The State does not need to conclusively disprove every possible scenario but must introduce competent evidence inconsistent with the defendant's theory. Here, Serrano claimed he was in Atlanta due to a migraine during the murders. However, the State provided fingerprint evidence placing him at the Orlando airport at the relevant time. This evidence, alongside an elaborate alibi plan that Serrano had developed, allowed the jury to find substantial evidence supporting the verdict, thus rejecting Serrano's hypothesis of innocence.

Serrano was recorded on hotel surveillance upon returning to Atlanta and began using his cell phone. The State presented circumstantial evidence linking him to the murders, including a dislodged ceiling tile in his former office, testimony about his habit of hiding items there, and a shoe impression consistent with his footwear. A composite sketch of a man seen near the crime scene was compared to Serrano's appearance from the surveillance video. Additionally, Serrano's statements to police included an unsolicited comment about Diane Patisso, revealing knowledge of details not publicly known. Testimony indicated Serrano had a motive to kill Gonsalves due to business disputes and expressed animosity toward him, alongside evidence he had access to the firearms used in the murders. This evidence was deemed sufficient to support his convictions, and the trial court correctly denied his motion for acquittal.

Serrano contested the denial of his motion to suppress statements made to FDLE Agent Ray while being transported from Ecuador to the U.S. After being read his Miranda rights, Serrano initially declined to make a statement but later engaged in conversation with the agent without a re-advisement of his rights. During this discussion, he made various claims, including distrust regarding a civil hearing and accusations against his business partners. The appellate court noted that it should defer to the trial court's fact determinations but independently review legal and constitutional issues.

A defendant who initially exercised his right to remain silent later engaged law enforcement in conversation and confessed. The court referenced Miranda rights, emphasizing that an accused must be informed of their right to remain silent and to have counsel present. If the accused wishes to remain silent, interrogation must stop. The court evaluated the admissibility of the confession based on the standard from Oregon v. Bradshaw, ultimately determining that any potential error in admitting Serrano’s statements was harmless as the evidence was largely cumulative. Testimonies included observations of Serrano with a gun and actions suggestive of financial misconduct. A fellow inmate indicated Serrano claimed the murders were linked to organized crime, while another witness testified to renting a car for Serrano. The only unique statement by Serrano concerned his absence from a civil hearing, which the court found did not significantly influence the verdict. 

Serrano also contested the trial court's jurisdiction, alleging illegal kidnapping from Ecuador, violating both the extradition treaty and the Ecuadorian Constitution. He claimed FDLE’s actions amounted to due process violations. His motion cited a report from the Inter-American Commission on Human Rights and described his alleged abusive treatment during extradition. However, evidence presented, including testimonies from law enforcement, contradicted his claims of mistreatment and improper deportation. The court affirmed the denial of Serrano’s motion to dismiss the indictment, citing precedent from United States v. Alvarez-Machain, which states that abduction does not negate jurisdiction in U.S. courts.

Alvarez-Machain involved the forcible kidnapping of a Mexican citizen by DEA agents for trial in the U.S., citing Frisbie v. Collins, where the Supreme Court upheld a conviction despite the defendant's kidnapping by law enforcement. The Court maintained that a trial court's jurisdiction is not compromised by the method of a defendant’s arrival, provided due process is upheld. The principle established in Ker v. Illinois was reaffirmed, asserting that constitutional protections are met when a defendant is informed of charges and receives a fair trial. The Second Circuit in United States v. Toscanino recognized an exception to this doctrine for extreme government misconduct, but no similar allegations were made in Serrano's case regarding his deportation from Ecuador.

Regarding prosecutorial misconduct, Serrano claimed various instances warranted reversal of his convictions, including comments on his right to remain silent, credibility of witnesses, and improper characterizations. While it is established that any comments on a defendant's silence are discouraged, they do not automatically necessitate reversal. The trial court's decisions on mistrial motions are reviewed for abuse of discretion. Serrano objected to a question about his appearance before the grand jury, which was sustained, but the jury was not exposed to an answer, and the judge instructed them to disregard the question. Thus, the error was not deemed prejudicial enough to invalidate the trial, and the trial court did not abuse its discretion in denying the mistrial.

Serrano contends that the State improperly referenced his right to remain silent during opening arguments. The prosecutor suggested that Serrano needed to fabricate an explanation for his fingerprint on a ticket. The trial court overruled Serrano's objection and denied his motion for mistrial, determining that the prosecutor's comments were based on testimony from inmate Leslie Todd Jones, who claimed Serrano suggested that the Florida Department of Law Enforcement (FDLE) planted the fingerprint evidence. The court found any potential error harmless, as it likely did not influence the verdict.

Additionally, Serrano objected to the prosecutor's statement regarding his opportunity to speak to the police the day after the murders, which the trial court initially sustained but also denied a mistrial. The court ruled that Serrano's voluntary visit to the police the day after the incident justified the prosecutor's statement. The trial judge later instructed the jury on Serrano's right to remain silent.

Serrano also alleged improper vouching for witness credibility when the prosecutor asked Erie employee David Catalan if he had been instructed to tell the truth. While the court sustained the objection and provided a curative instruction, it determined that the incident was not sufficiently prejudicial to warrant a mistrial.

Furthermore, Serrano claimed the State improperly bolstered Leslie Todd Jones's testimony by implying that his probation would be revoked if he lied. The trial court sustained the objection but denied the mistrial, noting that the question followed an impeachment of Jones by the defense and that the jury was instructed to determine Jones's credibility independently.

Lastly, the excerpt notes that it is inappropriate for a prosecutor to inquire about a defendant's lack of remorse in a capital case.

Serrano claims that the State improperly suggested he lacked remorse by asking Detective Parker if Serrano cried during his interview following the murders. Although the trial court sustained Serrano's objection and instructed the jury to disregard the question and answer, it determined that this did not significantly prejudice the trial. The prosecutor's inquiry about crying did not lead to an argument asserting Serrano's lack of remorse. Thus, the trial judge acted within discretion by denying the motion for mistrial.

Regarding character evidence, Florida Statutes § 90.404(1) generally prohibits the use of a person's character to prove actions on a specific occasion, and the State cannot attack a defendant's character without first establishing the defendant's good character. Serrano contends that the State made improper comments to demonstrate his bad character, specifically citing the prosecutor's remarks about Serrano opening a bank account with corporate funds. The court sustained the objection but found that the comments were aimed at establishing Serrano's motive to kill his business partner due to financial disputes rather than merely implying bad character. The trial court's instructions to disregard these comments mitigated any potential prejudice.

Serrano also argues that the State improperly suggested that his ownership of multiple guns indicated he was the murderer. While the ownership of guns alone does not imply guilt, evidence showed that Serrano was familiar with the type of firearms used in the murders. Even if admitting this gun evidence was erroneous, it would be considered harmless error beyond a reasonable doubt. Lastly, Serrano points to comments made by inmate Jones regarding their shared housing in protective custody, where individuals accused of serious crimes are kept; however, this does not significantly impact the overall case.

The trial court upheld Serrano's objection to a protective custody comment and instructed the jury to disregard it, determining that any potential prejudice did not compromise Serrano's right to a fair trial, given the murder accusation against him. Serrano's claim that the State improperly labeled him a "diabolical liar" during closing arguments was noted, referencing case law that prohibits inflammatory language. However, this claim was not preserved for appellate review due to the lack of a contemporaneous objection, nor did it constitute fundamental error. Similarly, Serrano's argument regarding the State's alleged shifting of the burden of proof in closing statements was also unpreserved for appeal. The court affirmed the trial court's denial of Serrano's motion for a change of venue despite the case's publicity, referencing the legal standard that mere notoriety does not necessitate a venue change unless community bias prevents jurors from fairly evaluating the evidence. The court concluded that Serrano failed to demonstrate that the cumulative effect of alleged prosecutorial misconduct warranted a reversal.

The trial judge must grant a change of venue if evidence shows that community exposure to a case creates inherent prejudice among potential jurors. This determination can be made based on evidence presented before jury selection or deferred until jury impartiality is assessed. Typically, unless in extraordinary circumstances, the venue change decision is made following jury selection attempts. During voir dire, many potential jurors in this case had not been exposed to case details, and those familiar with the case affirmed their ability to remain impartial. Consequently, the trial court found no significant prejudice among the jurors, affirming the denial of Serrano's venue change motion.

Serrano also argued that his Confrontation Clause rights were violated when the State's bloodstain pattern expert relied on measurements taken by another officer. However, since the measuring officer testified at trial and was cross-examined by the defense, Serrano's claim of denial of confrontation lacks merit.

Regarding cross-examination of character witnesses during the Spencer hearing, the prosecution sought to undermine their opinions by referencing an uncharged allegation of molestation against Serrano’s daughter. According to case precedent, introducing inadmissible non-statutory aggravation for impeachment purposes is not permitted.

The State cannot introduce a defendant's criminal history as nonstatutory aggravation under the guise of another purpose. However, the court finds any potential error harmless beyond a reasonable doubt since there is no reasonable possibility that Serrano was prejudiced by the prosecution's questioning. Serrano argues that cross-examinations during the Spencer hearing were misleading and prejudicial, impacting the jury's death sentence recommendation. The court clarifies that these cross-examinations occurred outside the jury's presence, negating any influence on their decision. The sentencing order explicitly states that Serrano had no prior criminal history and was a good father and husband, further indicating the trial judge was not swayed by the prosecution's inquiries. 

Regarding the avoid arrest aggravator linked to the murder of Diane Patisso, the court finds no error in the trial court's conclusion. It emphasizes that its role is not to reweigh evidence but to ensure the trial court applied the correct legal standard and that substantial competent evidence supports its findings. For the avoid arrest aggravator, the State must demonstrate that the primary motive for the murder was to eliminate a witness, which requires strong proof of intent. Circumstantial evidence can suffice to support this aggravator, even in the absence of direct statements from the defendant indicating such a motive.

Circumstantial evidence that supports the aggravating factor of avoiding arrest in the murder of Diane Patisso includes her familiarity with the defendant, Serrano, and his comments suggesting she was an unintended witness who needed to be eliminated. There is no evidence that Patisso resisted or posed a threat to Serrano, indicating that her murder served to prevent detection rather than to complete the crime. The trial court's finding of the avoid arrest aggravator is upheld. Serrano raised various constitutional claims regarding his death sentence, but the court has consistently rejected arguments against the constitutionality of Florida’s capital sentencing framework and lethal injection procedures. The court also dismissed Serrano’s claims regarding the shifting of burden of proof in jury instructions and did not need to address his Ring claims due to the trial court's finding of a prior violent felony aggravator. The court emphasizes that proportionality analysis in death penalty cases assesses the overall circumstances rather than merely tallying aggravating and mitigating factors, ensuring that the death penalty is applied only to the most serious crimes.

Serrano was found guilty of premeditated, execution-style murders of multiple individuals. After a Spencer hearing, the trial court identified aggravating circumstances, including cold, calculated, and premeditated (CCP) actions and a prior capital felony for all four murders, with an additional aggravating factor of avoiding arrest specifically for the murder of Diane Patisso. The court also acknowledged statutory mitigating factors: Serrano's lack of significant prior violent activity (given great weight) and his age (fifty-nine) at the time of the crimes (given moderate weight). Thirteen nonstatutory mitigating factors were also considered, receiving slight to moderate weight. The court referenced previous cases where the death penalty was deemed proportionate under similar circumstances, noting that aggravating factors often outweighed mitigating ones. Ultimately, the court concluded that the death penalty was proportionate in Serrano's case and affirmed his convictions for first-degree murder and death sentences. The decision was supported by several justices, with one concurring in the result. Additionally, the document references the Eleventh Circuit's stance on jurisdictional claims involving extreme governmental misconduct and notes doubts from other circuits regarding exceptions to the Ker-Frisbie doctrine.