Executed December 13, 2006 06:36 p.m. EST by Lethal Injection in Florida
53rd murderer executed in U.S. in 2006
1057th murderer executed in U.S. since 1976
4th murderer executed in Florida in 2006
64th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Angel Nieves Diaz
H / M / 28 - 55
W / M / 49
Nieves' prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut. In 1981, he escaped from the Hartford Correctional Center by holding one guard at knifepoint while another was beaten as he and three other inmates escaped, according to court records. Nieves, 55, was convicted and sentenced to death for killing Miami topless club manager Joseph Nagy in 1979. The conviction was largely based on the testimony of a jailhouse informant, Ralph Gajus, who occupied a nearby cell and said Nieves — who spoke poor English — admitted he was the triggerman by miming the shooting.
Diaz v. State, 513 So.2d 1045 (Fla. 1987) (Direct Appeal).
In re Diaz, ___ F.3d ___, 2006 WL 3544824 (11th Cir. 2002) (PCR).
Final / Special Meal:
Diaz did not order a last meal. He was served Wednesday's prison menu of shredded turkey with taco seasoning, shredded cheese, rice, pinto beans, tortilla shells, apple crisp and ice tea.
''The state of Florida is killing an innocent person. The state of Florida is committing a crime, because I am innocent. The death penalty is not only a form of vengeance, but also a cowardly act by humans. I'm sorry for what is happening to me and my family who have been put through this.''
Florida Department of CorrectionsDC Number: 101061
Offense Date: 12/22/1979
Offense/Sentence: 1ST DG MUR/PREMED (Death Sentence), ROBB. GUN/DEADLY WPN (268 Years), ROBB. GUN/DEADLY WPN - ATTEMPTED (15 Years), KIDNAP;COMM.OR FAC.FELONY (536 Years), THREATENS TO USE ANY FIREARM (15 Years)
County of Conviction: MIAMI-DADE
Case #: 8318931
"State probes lengthy execution," by Phil Long. (Fri, Dec. 15, 2006)
The state of Florida may not be quite done with executed killer Angel Nieves Diaz. Both Gov. Jeb Bush and the Florida Supreme Court took action Thursday to get to the bottom of why Diaz's execution Wednesday night took 34 minutes and two doses of lethal drugs. During the long execution at Florida State Prison in Starke, Diaz squinted his eyes, flexed his jaw, moved his mouth and grimaced. His movements did not stop early in the process.
According to The Associated Press, lethal injections normally take about 15 minutes, with the inmate rendered unconscious within the first three to five minutes. Prison officials said afterward that Diaz had liver disease that slowed the effects of the drugs, so they needed to use two doses.
Bush asked the state Department of Corrections to investigate the execution. ''I think it is appropriate to do so given the unusual length of time it took for the process to be complete,'' Bush said. Max Changus, the DOC's assistant general counsel, will lead the investigation.
The Florida Supreme Court on Thursday granted a request by the agency that represents other Death Row inmates to preserve evidence in the Diaz execution and sent the case to a judge in Ocala to consider, among other things, whether there should be an independent autopsy in the case.
In an emergency petition filed Thursday morning, a Capital Collateral Regional Counsel attorney, on behalf of several Death Row inmates, also asked that Florida's lethal injection process be declared unconstitutional because it violates protections against cruel and unusual punishment.
"Lethal injection takes 34 minutes to kill inmate; Convicted murdered Angel Diaz was executed, but his death seemed to take longer than other lethal-injection executions," by Phil Long and Marc Caputo. (Thu, Dec. 14, 2006)
STARKE - Angel Nieves Diaz, the self-styled ''Daddy of Death'' for the Machete Men Puerto Rican terror gang who was implicated in at least three murders and two brutal prison breaks, spent his last moments Wednesday inveighing against the taking of a life -- his own. ''The state of Florida is killing an innocent person,'' Diaz said from the gurney on Death Row. ``The state of Florida is committing a crime, because I am innocent. The death penalty is not only a form of vengeance, but also a cowardly act by humans. I'm sorry for what is happening to me and my family who have been put through this.'' What happened to him next looked agonizing. Grimacing, Diaz took 34 minutes to die from the drugs pumped through him. At times he seemed to be squinting and at other times he appeared to be flexing his jaw.
A Florida prisons spokeswoman, Gretl Plessinger, said the length of time it took Diaz to die was not a surprise, and that Diaz did not suffer any pain. She said prison officials had to give Diaz a second dose of the lethal chemicals because he had liver disease, which slowed his metabolism. She said it was not the first execution in which a second round of drugs had to be administered. Maria Otero, a niece of Diaz's who was outside the prison with other family members, asked why it took a second dose of chemicals to execute her uncle. ''We deserve to know the facts,'' she said. Diaz's death is likely to reignite the debate over the manner of executions in a case that already showed troubles with the death penalty.
They're sure that Diaz was complicit in the killing. They know he had already shot a police officer in Puerto Rico during a robbery, then stabbed a prison drug-rehabilitation counselor to death before busting out of prison and maiming a guard. And they suspect he and Toro killed yet another man in a Northwest Seventh Street high-rise, said former Metro-Dade Detective Greg Smith, who was a member of the nation's first cold-case squad. The squad was a must at the time, Smith said, because Miami was gripped by the cocaine-cowboy wars and ``bodies were piling up.''
The Velvet Swing killing was the second case the squad solved, Smith said, thanks to a tip from Boston police investigating a murder committed by Toro. After Diaz was arrested in Miami, he told another jailed killer, Ron Gajus, about his role in the killing and hatched plans for a jail break -- which would have been his third after escaping in Puerto Rico and Connecticut. Gajus told on Diaz when he found out that he wasn't included in the escape plans, which Diaz planned to commit with a machine gun. And for that and so much more, Smith said, Diaz deserved the ultimate penalty. ''Don't forget what he was going to do in the Dade County jail: He was going to get a Mac-10 machine gun and blast his way out and kill people. He has no morals whatsoever,'' Smith said.
"Florida's 34-minute execution fires up debate," by Michael Peltier. (Thu Dec 14, 2006 1:51 PM ET)
TALLAHASSEE, Florida (Reuters) - Death penalty critics on Thursday asked the Florida Supreme Court to halt lethal injections after a convicted killer took 34 minutes to die from the procedure and witnesses said he appeared to suffer. Angel Diaz, sentenced to death for the 1979 murder of a Miami strip club manager, died on Wednesday after receiving a three-drug cocktail used by Florida and other death penalty states that administer lethal injections.
Prison officials had to give Diaz the drugs twice and witnesses to the execution reported he appeared to grimace, gasp for breath and contort as he lay strapped to the gurney during the procedure that usually brings death in minutes. Florida Department of Corrections officials said Diaz was unconscious and suffered no pain. They said the execution took longer than most because Diaz, 55, had a liver condition that slows the drugs' effects.
Florida lawmakers voted to switch to lethal injection in 2000 following a series of bungled executions using the state's electric chair, known as "Old Sparky." In the most notorious incident, flames shot from the head of a prisoner during an execution in 1997. In the petition filed on Thursday on behalf of death row inmates, lawyers called on the high court to order an autopsy and to declare lethal injection unconstitutional because "it involves the unnecessary and wanton infliction of pain contrary to contemporary standards of decency."
Wednesday's execution added fuel to the debate over lethal injection as states grapple with what critics call an uncertain science. A U.S. Supreme Court ruling in January held up Florida's executions until September, when the state resumed capital punishment after formalizing its procedure. "The execution has underscored the ineffective protocol that was adopted in August," said Martin McClain, an attorney and death penalty critic who has handled scores of death penalty cases. Under the protocol, the inmate is given sodium pentothal to render him unconscious. Next, pancuronium bromide is given to paralyze the lungs. Potassium chloride is then injected to stop the heart, but is said to be painful as it works its way through the circulatory system.
Reporters for Florida media and an attorney representing death row inmates witnessed the execution and described a scene in which Diaz appeared to thrash and medical personnel were called in to administer more drugs. "During the time Mr. Diaz appeared to be speaking, it was my observation that he was in pain," Neal Dupree of Capital Collateral Regional Counsel testified in the petition. "His face was contorted and he grimaced on several occasions. His Adam's apple bobbed up and down continually, and his jaw was clenched."
Critics say state officials were aware of Diaz's liver condition and should have modified the procedure to ensure Diaz would be unconscious when the third drug was given. "It's clear they inflicted pain on him, and it's clear that they knew ahead of time about his condition," McClain said. "The only logical conclusion is there was gross negligence here."
"Florida executes strip club killer for 1979 murder," by Michael Peltier. (Wed Dec 13, 2006 7:08 PM ET)
TALLAHASSEE, Florida (Reuters) - Florida prison officials executed a 55-year-old death row inmate by lethal injection on Wednesday for the 1979 murder of a strip club manager in Miami. Officials at Florida State Prison near Starke pronounced Angel Diaz, a Puerto Rican native, dead at 6:36 p.m EST (2336 GMT) after giving him a deadly cocktail of chemicals that paralyzed his lungs and stopped his heart, a spokesman for Gov. Jeb Bush said.
The execution came despite last-minute appeals to the U.S. Supreme Court and letters from Puerto Rican officials to the governor asking that his life be spared. Diaz was the fourth person to be put to death in Florida since September despite a national debate over whether the three-drug cocktail used in the procedure results in painful death and is therefore unconstitutionally cruel. Some states have chosen to postpone lethal injections while the issue travels through the courts.
Diaz spent part of his final day with family members. He later met with a prison chaplain and received last rights by a Roman Catholic priest shortly before his execution, according to Florida Department of Corrections spokeswoman Gretl Plessinger.
Diaz was sentenced to die for the murder of Joseph Nagy, a strip club manager who was shot with a silencer-equipped gun when Diaz and two accomplices robbed the Velvet Swing club on December 22, 1979. Diaz was not convicted until 1984 after a trial in which he represented himself with the aid of a court-appointed attorney. The jury recommended death by eight votes to four. A witness, Ralph Gajus, recently recanted his testimony, saying he lied on the witness stand in 1984 because he was angry with Diaz. Gajus was serving a 20-year sentence for second-degree murder.
Diaz became the 64th prisoner executed since Florida resumed executions in 1979. He was the 21st inmate executed during the governorship of Jeb Bush -- President George W. Bush's brother -- who leaves office next month.
Diaz did not order a last meal. He was served Wednesday's prison menu of shredded turkey with taco seasoning, shredded cheese, rice, pinto beans, tortilla shells, apple crisp and ice tea, Plessinger said.
"Inmate takes 34 minutes to die," by Nathan Crabbe. (Dec 14, 2006)
Angel Nieves Diaz shuddered and appeared to grimace in pain during his execution Wednesday, requiring two rounds of lethal drugs before dying. Diaz, 55, was declared dead 34 minutes after the process started, about 20 minutes longer than recent executions have taken. His appeals claimed lethal injection constituted cruel and unusual punishment, and his execution seems likely to fuel the debate over the process.
The Puerto Rican native was sentenced to death for the murder of a Miami topless club manager 27 years ago this month. He professed his innocence in his last statement, which was spoken in Spanish and translated by a prison official. "The state of Florida is killing an innocent person. The state of Florida is committing a crime because I am innocent," he said.
Observers couldn't recall another execution that required two rounds of drugs since lethal injection was instituted in 2000. Inmates are typically given three drugs in the process: the first to render unconsciousness, the second to cause paralysis and the third to stop the heart. Department of Corrections spokeswoman Gretl Plessinger said Diaz had liver disease, slowing the effectiveness of the drugs and requiring the second round. Plessinger said Diaz didn't feel pain during the procedure. "Once the first set of drugs was introduced, he did not recover," she said.
But Diaz's family members and death-penalty advocates assembled outside Florida State Prison questioned her explanation. Mark Elliott of Floridians for Alternatives to the Death Penalty said Diaz would have felt intense pain if he was conscious when the third drug was administered. "The sensation is supposed to be like being burned alive from the inside out," he said.
Cousin Maria Otero of Orlando said the family wasn't aware Diaz had liver disease and demanded more facts about what happened. One of 16 family members who spent 45 minutes with Diaz earlier in the day, she said he was calm and professed his innocence. "He asked for us not to lose the faith, to try to be united," she said. Family members aren't allowed to witness executions, so they assembled with protesters in the pasture across the street from the prison. Relatives cried out in grief during the protests, and two passed out from what a relative said was anxiety.
The U.S. Supreme Court rejected his last-ditch appeals in the hour before the execution. Diaz claimed he was not the triggerman in the killing of Joseph Nagy during a robbery at the Velvet Swing Lounge.
He was convicted largely on the testimony of a jailhouse informant who claimed the Spanish-speaking Diaz mimed a confession. The informant later said he lied. While a co-defendant cut a deal with prosecutors and was given life in prison, Diaz acted as his own attorney at trial and was sentenced to death.
Diaz turned down requests for a final meal and was served the day's standard prison meal of turkey tacos, which he turned down. He later met with prison chaplain Dale Recinella and received last rites from Father Jose Maniyangat. He asked that his body be sent to Puerto Rico for funeral services. Puerto Rican Gov. Acevedo Vila and other officials had asked Gov. Jeb Bush to stop the execution. The U.S. territory abolished the death penalty in 1929.
The execution was the fourth this year, the most since 2000 even with delays caused by challenges to the lethal injection method. Convicted cop killer Clarence Hill stopped his execution in January with such a challenge, only to be executed in September when further appeals were not allowed.
All four inmates executed this year have challenged the lethal injection procedure as cruel and unusual punishment, claiming inmates can wake and feel pain during the process. The state has argued the process is designed to ensure inmates are unconscious after the first drug is administered. But Diaz's execution would appear to contradict that claim.
After making his last statement at 6 p.m., Diaz appeared to wince and mouth words. Over the course of 10 minutes, he grimaced and shuddered at several junctures. He then moved his mouth in a way that made it appear he was gasping for air. Diaz stopped moving at 6:24, and was declared dead by prison officials 10 minutes later.
"Evidence questioned ahead of execution," by Nathan Crabbe. (Dec 13, 2006)
Jenny Greenburg didn't mince words when talking about the execution of Angel Nieves Diaz, scheduled today at Florida State Prison. "Putting someone to death on the word of a jailhouse snitch is un-American," said Greenburg, director of the Florida Innocence Initiative.
Nieves, 55, was convicted and sentenced to death for killing Miami topless club manager Joseph Nagy in 1979. The conviction was largely based on the testimony of a jailhouse informant, Ralph Gajus, who occupied a nearby cell and said Nieves — who spoke poor English — admitted he was the triggerman by miming the shooting. Gajus later said he made up the story. But unless the Supreme Court steps in, Nieves will be executed at 6 p.m. today in the Bradford County prison. State and federal appeals courts have found the evidence has already been considered and also rejected Nieves's claim that lethal injection is cruel and unusual punishment.
Greenberg, who runs the nonprofit seeking to overturn wrongful convictions, said the case illustrates that jailhouse informants are notoriously unreliable. Such informants often trade testimony for lesser sentences or favorable treatment, she said. Jailhouse informants are the leading cause of wrongful convictions in U.S. capital cases, according to a report by the Center on Wrongful Convictions at Northwestern University. The report found that 51 death row inmates have been exonerated who were initially convicted on the word of jailhouse informants.
State Attorney Bill Cervone, prosecutor for the six-county district including Alachua County, said he's reluctant to rely on the word of a jailhouse informant. He said he'd be unlikely to base a case on an informant's word if there was no other evidence. "We're very cautious about it because there are obvious agendas involved," he said. In the Nieves case, Gajus said police promised to help him with his own case. He was later sentenced to 20 years for second-degree murder.
Greenburg said one of Florida's best known wrongful convictions was due to a jailhouse informant. Based on the testimony from convicted murderer Clarence Zacke, Wilton Dedge was sentenced to life in prison for sexual battery and other changes in Brevard County. An investigation by the New York-based Innocence Project found Zacke received a drastic reduction in his sentence by claiming Dedge confessed while they were being transported together. DNA evidence proved Dedge didn't do it, leading to his release after 22 years in prison.
Carolyn Snurkowski, who is representing the state in the Nieves case, said it's up to a jury to decide whether an informant is reliable. She said she doesn't have a problem with such testimony being used if jurors are informed of any deals being given. "It's in their hands to make a credibility determination," she said.
But Greenburg supports allowing judges to determine credibility before allowing such testimony. "The presumption should be this is not credible evidence unless the state proves otherwise," she said.
Nieves was convicted of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery and one count of possessing a firearm during the commission of a felony for a holdup at a bar.
Nieves' prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut. In 1981, he escaped from the Hartford Correctional Center by holding one guard at knifepoint while another was beaten as he and three other inmates escaped, according to court records.
"Gov. Bush suspends executions," by Karen Voyles. (Dec 16, 2006)
The prolonged execution of Angel Nieves Diaz on Wednesday was apparently caused by intravenous needles that pierced completely through veins in both arms. On Friday, Gov. Jeb Bush announced a moratorium on executions until at least March to allow a specially appointed panel to study the Diaz case and other issues surrounding lethal executions. Diaz, 55, was executed at Florida State Prison near Raiford for the 1979 murder of a Miami topless club manager.
During a telephone news conference Friday afternoon, Dr. William Hamilton, a 25-year veteran medial examiner who performed an autopsy on Diaz, said the errant intravenous needles drained the lethal cocktail of drugs into Diaz's flesh rather than his veins. The concoction should have been pumped into Diaz's bloodstream, where it would have circulated throughout his body faster and would have worked much more quickly. The misdirected chemicals were injected near his elbows and by the time the autopsy was conducted on Thursday, Hamilton said he found chemical burns about a foot long on both of Diaz's arms.
Also participating in the news conference was Florida Corrections Secretary James McDonough. He said an internal investigation showed that no member of the execution team saw swelling or other indications that the chemicals were not entering Diaz's veins. "It looked to me for the most part like they did what they were asked to do," McDonough said. Witnesses did note something unusual.
Of the 19 previous inmates executed by lethal injection, most stop moving within about five minutes and are pronounced dead within 15 minutes. Witnesses said Diaz was moving for 24 minutes and required a second round of the deadly drugs. He was pronounced dead about 10 minutes after his last movements were apparent, a total of about 34 minutes from the time the first drug was administered.
Hamilton is the medical examiner for the 8th Judicial Circuit and his office is responsible for performing Death Row autopsies. He told reporters that the needles were misplaced or dislodged. "More likely than not, but not to an absolute degree of medical certainty, the perforation occurred very early in the process," Hamilton said.
Although witnesses said it appeared that Diaz was struggling and in pain, Hamilton would not say whether he thought the death was painful. "I am going to defer answers about pain and suffering until the autopsy is complete," he said. Hamilton said the results released to reporters Friday were preliminary and other tests may take several weeks.
Among the factors likely to be considered are Diaz's health issues, which could have contributed to degradation of his veins. Earlier in the week, Diaz's state-appointed attorney, Suzanne Myers Keffer, said Diaz was an intravenous drug user, which doctors said might have led to problems with inserting the IV. The medical examiner's findings contradicted an explanation given by prison officials, who said Diaz needed the second dose because liver disease caused him to metabolize the lethal drugs more slowly. Hamilton said his liver appeared normal.
Diaz's attorney was angry about Diaz's final minutes. "This is complete negligence on the part of the state," she said. "When he was still moving after the first shot of chemicals, they should have known there was a problem and they shouldn't have continued. This shows a complete disregard for Mr. Diaz. This is disgusting."
Following the news conference, McDonough told The Sun that none of the employees assigned to the execution team were suspended or otherwise moved from their jobs. "My observations -- on the spot that night and by our internal review team -- are that people acted professionally and did their job with every intent of meeting the standards," McDonough said. "The questions on why there was this penetration through the veins is still being looked at and at this time I see no need to change anyone's job, suspend anybody or take any other personnel action."
Gov. Bush has suspended all executions until an 11-member commission he created on Friday can evaluate the execution process. Bush said he wanted to be certain that Florida's system of lethal injections do not constitute cruel and unusual punishment. The panel of representatives from Florida's scientific, medical, law enforcement and legal communities, was directed to complete its report by March 1, when it is expected to be reviewed by Bush's replacement, Governor-elect Charlie Crist.
In his executive order, Bush wrote that Diaz's autopsy "indicates the lethal injection protocols may need to be reviewed to determine if any additional protocols should be added or whether any existing protocols should be modified in any way." Lethal injections like those administered to Diaz and 19 others who have been executed since 2000 were touted as superior to the state's previous method — electrocution.
For decades, Florida executed inmates in an electric chair, but abolished the practice after three botched electrocutions. Two inmates' heads caught on fire and a third condemned man's nose began to bleed profusely during his execution. David Elliot, spokesman for the National Coalition to Abolish the Death Penalty, said, "Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether it's electrocution or lethal injection. We just think the Florida death penalty system is broken from start to finish."
Also on Friday, a federal judge in California imposed a moratorium on executions, declaring that the state's method of lethal injection runs the risk of violating the constitutional ban on cruel and unusual punishment. U.S. District Judge Jeremy Fogel ruled in San Jose that California's "implementation of lethal injection is broken."
While the Diaz execution is scrutinized and legal battles fought over how or if to execute, 374 people remain on Florida's Death Row. McDonough said the controversial execution did not result in any control issues among the condemned inmates. "There has been no manifestation of change of attitude by staff or inmates," McDonough said. "What's transparent here is that the department went forward with a difficult job and now we will be scrutinized because of the amount of time it took to complete this assignment."
First Coast News
"Florida Executes Angel Diaz by Lethal Injection." (December 14, 2006)
RAIFORD, FL (AP) -- Angel Nieves Diaz, who was convicted of murdering a topless bar manager 27 years ago, was executed by lethal injection Wednesday despite his protests of innocence and requests for clemency made by the governor of his native Puerto Rico. Diaz, 55, was pronounced dead at 6:36 p.m., just minutes after an executioner injected a cocktail of lethal chemicals into IV tubes leading into his arm.
As his attorney pressed final appeals in the U.S. Supreme Court, Nieves' family members were gathering at Florida State Prison near Starke to say their last goodbyes to a man they know as a loving father, grandfather, brother and uncle. They claim the state is getting ready to unjustly execute him.
He was later joined by Dale Recinella, a prison chaplain, and was to receive last rites from a priest, Jose Maniyangat. "He is at peace with God. He just wants people to know he is innocent," said Solsirette Otero-Barahona of Orlando, who calls Nieves her uncle, although he is her father's first cousin. Otero-Barahona said at one of her last visits with 55-year-old Nieves, he told her "You know I'm innocent. I know I'm innocent. God knows I'm innocent."
In an interview with Notiseis television broadcast Tuesday evening in Puerto Rico, Nieves said, "I feel at peace. Yes, nervous, but without fear because I feel close to God and that helps me feel good."
Funeral services are being planned for Nieves, who wants his body returned to his native Puerto Rico. A prayer service was being held Wednesday evening in front of a church in Old San Juan and family members celebrated Mass on Tuesday night in Maclenny. "We are just overwhelmed. We love him so much and we are planning his burial," Otero said.
Officials in Puerto Rico, including Gov. Acevedo Vila and Senate President Kenneth D. McClintock, have written letters to Gov. Jeb Bush asking him to stop the execution. Puerto Rico, a U.S. territory, abolished capital punishment in 1929. There are so many problems with Nieves' trial and appeals that the execution should be stopped, Otero said.
No one actually witnessed the shooting death of manager Joseph Nagy. Most of the patrons and employees had been confined to a restroom and a dancer hiding under the bar did not see who fired the shoots which killed Nagy, she said. "Everyone has recanted. Fingerprints were not clear. There were no eyewitnesses and even the shooter says my uncle is an innocent man," Otero said.
The case remained unsolved for four years until 1983, when Nieves' girlfriend told police he was involved in the crimes. Angel "Sammy" Toro and Angel Nieves were charged with murder. A third man, "Willie," was never identified, according to a summary of his case by the Florida Commission on Capital Crimes.
At his trial, where he was forced to wear shackles, Nieves conducted his own defense, with the assistance of counsel. Toro cut a deal with prosecutors and was sentenced to life in prison. The jury in Nieves' trial recommended he be sentenced to death by an 8-4 vote.
Nieves is the 21st man executed under the administration of Gov. Jeb Bush and the 64th inmate to die since Florida resumed executions in 1979 after a 15-year hiatus. It was the fourth execution this year. Nieves' prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut.
Nieves did not order a last meal, so he was served Wednesday's prison of shredded turkey with taco seasoning, shredded cheese, rice, pinto beans, tortilla shells, apple crisp and ice tea, said Gretl Plessinger, a Department of Corrections spokeswoman.
The court issues raised by Nieves included a challenge to Florida's method of lethal injection. The arguments are similar to those made earlier this year by three other death row inmates who all lost their appeals and were executed. Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.
"Doctors: Botched execution painful," by Ron Word. (Associated Press Sun, Dec. 17, 2006)
JACKSONVILLE - Death penalty foes have for years warned of a worst-case scenario in which an inmate being executed by lethal injection remains conscious, experiencing severe pain as he dies slowly. That day may finally have come.
Angel Nieves Diaz, a career criminal who was executed Wednesday for fatally shooting a Miami topless bar manager 27 years ago, grimaced as he was strapped to a gurney and he was given a rare second dose of deadly chemicals as he took more than twice the usual time to succumb. The needles supposed to be inserted in 55-year-old Diaz's veins were pushed through to soft tissue instead, and doctors say it could have been a painful mistake as the poisons burned his arms.
"It really sounds like he was tortured to death," said Jonathan Groner, associate professor of surgery at the Ohio State Medical School, who has written several articles on lethal injection. "My impression is that it would cause an extreme amount of pain." The error has led Gov. Jeb Bush to suspend all executions; he has said he'll name a commission to look into the state's lethal injection process as well.
It does little to change what Diaz may have experienced, though, as he was given three drugs to deaden pain, paralyze the body and cause a fatal heart attack. A study published last year in British medical journal The Lancet concluded that the painkiller, sodium pentothal, could wear off before inmates die, subjecting them to excruciating pain when the potassium chloride causes a heart attack.
That study has been cited in unsuccessful appeals for death row inmates, who have claimed the pain experienced during lethal injection violates the Constitution's ban on cruel and unusual punishment.
Dr. Nik Gravenstein, professor and chairman of anesthesiology at the University of Florida, said it is impossible to say how much pain the level of chemicals injected into condemned inmates causes because they can't be interviewed. But patients who have received lower levels of the chemicals for various treatments "describe this as being painful." Dr. William Hamilton, the Gainesville medical examiner who performed the autopsy on Diaz, refused to say whether Diaz died a painful death. Hamilton said IV needles in both of Diaz' arms punctured the vein. As a result of drugs entering Diaz' body near his elbows, he has a 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said.
The medical examiner's findings contradicted the explanation given by prison officials, who claimed the slow process and the second dose were needed because he had liver disease. Although prison medical records showed Diaz had hepatitis, his liver appeared normal, Hamilton said. Department of Corrections Secretary James McDonough said the execution team, whose identities are carefully guarded, did not see any swelling of Diaz' arms, which would have been an indication that chemicals were going into tissues and not veins.
McDonough said reports that he received indicated Diaz was not in pain and had fallen asleep and was snoring. But witnesses reported movement of Diaz as long as 24 minutes after the first injection, with him grimacing, blinking, licking his lips, blowing and attempting to mouth words. At one point, about midway through the process, he turned his head toward witnesses, even though his head was restrained by a leather strap and prison guard.
All told, it took 34 minutes for Diaz to die. Executions by lethal injection normally take about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. McDonough said the execution team, believing Diaz was near death, somewhat altered the second series of injections, cutting down on the amount of pancuronium bromide, the second chemical that paralyzes the inmate.
Gravenstein said it can be difficult to get IV needles in their proper place. In a hospital setting, it takes on average 1.6 tries to successfully place the IV. He indicated someone should have realized what was happening. "To have given somebody many times what is necessary and then to give them many more times again, it doesn't pass what one might call the 'red face test.' It just doesn't make sense," Gravenstein said.
Dr. Philip Lumb, chairman of the anesthesiology department at the Keck School of Medicine at the University of Southern California, was critical of the second dosage given to Diaz. "If an IV has to be given a second time, it is an indication it was not done right the first time," Lumb said. "The manner at the stage is now becoming inappropriate for the prisoner."
The 11-member commission that Bush has called for is being ordered to have a preliminary report to incoming Gov. Charlie Crist by Feb. 1 and a final report by March 1. Crist takes office on Jan. 2 and has agreed to continue a moratorium on executions until the commission's report is done. The botched execution has taken a toll on the family of Diaz, who in his final statement, said he was an innocent man. Diaz was also convicted of second-degree murder for a killing in his native Puerto Rico.
D. Todd Doss, an attorney representing Diaz's family, said legal action was being considered. "We are still grieving. It continues to get worse and worse, learning the details of what happened," said Sol Otero, Diaz' niece from Orlando. "The excruciating pain and torture my uncle went through for 34 minutes. He was literally crucified."
National Coalition to Abolish the Death Penalty
Ángel Nieves Díaz
Ángel Nieves Díaz was executed at the age of 55 on December 13, 2006 in Florida. He was sentenced for murdering the manager of a Miami topless bar in 1979. His execution became famous because it took 34 minutes and two injections before he died because of a mistake by the medical staff. According to authorities, he still did not suffer but according to the witnesses he did. After the incident the Governor of Florida Jeb Bush suspended all executions in Florida.
California, Florida Suspend Executions. Associated Press (2006-12-16). Retrieved on 2006-12-16.
Blunder forces Fla. to suspend executions after faulty injection. The News-Press (2006-12-16). Retrieved on 2006-12-16.
Lethal injection of Latino tortuous, not instantaneous. Vivirlatino (2006-12-15). Retrieved on 2006-12-16.
All Executions Suspended In Florida. NBC10 (2006-12-15). Retrieved on 2006-12-16.
Floridians for Alternatives to the Death Penalty
South Florida Sun-Sentinel
"Florida has executed 59 inmates since 1979." (The Associated Press Posted April 5 2005) Following is a list of 59 inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
< 22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was execited by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
Diaz v. State, 513 So.2d 1045 (Fla. 1987) (Direct Appeal)
Defendant was convicted in the Circuit Court, Dade County, Amy Steele Donner, J., of capital murder, and he appealed. The Supreme Court, Shaw, J., held that: (1) denial of continuance was not abuse of discretion; (2) security measures taken at trial were minimum required; (3) defendant competently, knowingly, and voluntarily waived his right to counsel; (4) culpability requirement was satisfied; and (5) death sentence was not disproportionate to crime. Affirmed. Barkett, J., specially concurred and filed opinion.
One of three Spanish-speaking men shot and killed the bar manager during the December 29, 1979, holdup of a Miami bar. No one witnessed the shooting. The majority of the patrons and employees had been forcibly confined to a restroom. A dancer hiding under the bar did not see the triggerman. Angel Diaz was charged with the crimes and convicted of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery, and one count of possessing a firearm during the commission of a felony. Diaz conducted his own defense with standby counsel from the opening statements through conviction. He was represented by counsel during jury selection and the *1047 sentencing phase. The trial court sentenced Diaz to a total of 834 years of imprisonment and imposed the jury's recommended sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Diaz challenges his convictions on several grounds. He first argues that the court erroneously denied an ore tenus defense motion for continuance. The defense received notice one week before trial that the state intended to call Gajus as a witness. Diaz allegedly discussed the robbery and murder with Gajus who occupied a neighboring cell during Diaz's pre-trial incarceration. Defense counsel immediately deposed Gajus after receiving the state's notice, but, on the first day of trial, moved for a continuance, claiming insufficient time to discuss these statements with Diaz or to investigate their truth. We find no abuse of discretion in the trial court's denial of Diaz's requested continuance.
Diaz next contends that the court erroneously excused for cause two jurors who opposed the death penalty creating a conviction-prone jury. We have previously rejected this argument. Lambrix v. State, 494 So.2d 1143 (Fla.1986); Dougan v. State, 470 So.2d 697 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986).
Diaz claims that the security measures at trial and his appearance in shackles biased the jury. The court's obligation to maintain safety and security in the courtroom outweighs, under proper circumstances, the risk that the security measures may impair the defendant's presumption of innocence. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Dufour v. State, 495 So.2d 154 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). The court found in the instant case that sixty to seventy percent of the security personnel were in plain clothes and blended in with the spectators. The court suggested that Diaz obstruct the jury's view of the shackles by keeping his pants legs pulled down over the shackles or by placing a box or briefcase in front of his feet. Diaz made no effort to hide the shackles. We find that Diaz's prior murder and armed robbery convictions and his record of escapes and prior incidents of violence support the court's decision that the security measures taken were the minimum required.
Diaz next argues that the court erred in allowing him to proceed pro se because (1) his request was not timely, (2) he needed an interpreter, and (3) his movement before the jury during such representation drew attention to his shackles. Diaz made his request after jury selection, but before the opening statement. The court conducted a Faretta inquiry,FN1 warning Diaz of the difficulties of proceeding pro se, and expressing its opinion that to do so was not in his best interest. The court emphasized the problems arising from his need for an interpreter: FN1. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
THE COURT: ··· Mr. Diaz, you heard all the statements that the Court made and my inquiry into your ability to practice law, to represent yourself in this courtroom, understanding what you believe to be the facts of the case as you know them, Mr. Lamons' ability as a defense attorney, the case the State has against you, your inability to speak the English language, the necessity of an interpreter at every stage of this proceeding, and the fact that the State is requesting the death penalty in this particular case. Do you, yes or no, desire to represent yourself?
THE DEFENDANT: Yes, ma'am.
The record shows that Diaz competently, knowingly, and voluntarily waived his right to counsel and exercised his right to conduct his own defense. He made his choice knowing that he would proceed in shackles. His claimed ignorance of the fact that such representation might prejudicially increase the shackles impact on the jury is untenable. Further, we reject his contention that the court should have revoked its permission to proceed pro se when Diaz argued with the witnesses.
Diaz contends that all death sentences are cruel and unusual in violation of the eighth amendment to the United States Constitution. This argument was rejected in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied sub nom., Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and a multitude of subsequent cases.
Diaz next argues that we must vacate his death sentence because the court failed to instruct the jury on the intent necessary to support a sentence of death under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). As we recently noted in Jackson v. State, 502 So.2d 409 (Fla.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 686 (1987), the United States Constitution does not require a specific jury finding of the requisite intent. Such findings may be made in an “adequate proceeding before some appropriate tribunal-be it an appellate court, a trial judge, or a jury.” Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 700, 88 L.Ed.2d 704 (1986) (footnote omitted).
The United States Supreme Court recently revisited Enmund in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), stating Enmund held that when “intent to kill” results in its logical though not inevitable consequence-the taking of human life-the Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. The court concluded that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Id. (footnote omitted).
Turning to the instant case, Candice Braun testified that on the night of December 29, 1979, Diaz returned to their home and told her that Angel Toro shot a man during the robbery. Gajus, however, who occupied the neighboring cell during Diaz's pre-trial incarceration, provided evidence that Diaz shot the victim. He testified as follows:
[Diaz] indicated that he shot the man. Q. Where did he indicate he shot the man? A. In the chest. Q. Did he ever come out and say to you in the words, “I shot the man in the chest”? A. No, he did not. Q. You were inferring that from his indications? A. Yes.
We need not determine, however, whether this evidence supports a finding of intent to kill. As in Tison, Diaz was actively involved in and present during the commission of the crimes. He and his fellow robbers each discharged a gun during the robbery. There is evidence that Diaz's gun had a silencer. Eight to twelve persons occupied the bar at the time of the robbery. Based on our review of the record, we find that Diaz was a major participant in the felonies and at the very least was recklessly indifferent to human life. The Enmund/Tison culpability requirement is thus satisfied. FN2
FN2. We recognized in Jackson that an appellate court's factual findings may be inadequate in some cases. See Cabana. We again direct the trial courts to instruct juries that, in order to recommend death, they must make findings satisfying Enmund and now Tison. Further, we reiterate that the trial courts shall include in their sentencing orders findings supporting the Enmund/Tison culpability requirement. See Tison; Enmund; Jackson.
We agree with Diaz that the court erroneously found the aggravating factor that he knowingly caused great risk of danger to many persons. This must be based on a high probability, not a mere possibility or speculation. Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, *1049 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). The court based its finding on the fact that Diaz carried a gun equipped with a silencer; that during the robbery he fired the gun over the head of patron Robbins; that the shot ricocheted off a rotating glass ball centered over the stage where Petterson was dancing; and that the bullet then ricocheted off a mirror, and finally became lodged in the women's dressing area. It is not highly probable that a single shot fired toward the ceiling will ricochet and, in doing so, create great risk of danger to many people.
The court also found the following aggravating factors: (1) Diaz was under sentence of imprisonment at the time of the crime; (2) Diaz had previously been convicted of another capital felony involving the use or threat of violence; (3) Diaz committed the murder during the commission or attempt to commit a capital felony (kidnapping); and (4) Diaz committed the murder for pecuniary gain. The court found no mitigating circumstances. “[W]hen there are one or more valid aggravating factors and none in mitigation, death is presumed to be the appropriate penalty.” Jackson, 502 So.2d at 413 (citations omitted).
Diaz contends, however, that his death sentence is disproportionate to his crimes because there is insufficient evidence that he shot the victim and his codefendant received a life sentence. We disagree. We have already determined that death is appropriate under Enmund and Tison, even assuming insufficient evidence that Diaz shot the victim. Further, although a codefendant's sentence may be relevant to proportionality where, for instance, one defendant, as the dominant force, is more culpable than a codefendant follower, see Marek v. State, 492 So.2d 1055 (Fla.1986), “[p]rosecutorial discretion in plea bargaining with accomplices ··· does not violate the principle of proportionality.” Garcia v. State, 492 So.2d 360, 368 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986). We have conducted a review of similar cases and find that the death sentence is not comparatively disproportionate. See, e.g., Jackson; Blanco v. State, 452 So.2d 520 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985).
We reject Diaz's final argument that the court committed reversible error by making a prejudicial remark during the sentencing phase. Diaz waived this issue by rejecting the court's offer to give a curative instruction.
Accordingly, we affirm Diaz's convictions and sentences. It is so ordered. McDONALD, C.J., and OVERTON, EHRLICH, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs specially with an opinion.
In re Diaz, --- F.3d ----, 2006 WL 3544824 (11th Cir. 2002) (PCR)
Background: State prisoner sentenced to death and scheduled for execution sought authorization to file a successive habeas petition and stay of execution.
Holdings: The Court of Appeals held that:
(1) prisoner was not entitled to authorization to file successive habeas petition based on newly discovered evidence in the form of affidavit of jailhouse informant;
(2) prisoner was not entitled to authorization to file successive habeas petition on grounds of newly discovered evidence of an alleged Brady violation; and
(3) Crawford rule could not be asserted as new rule of constitutional law, justifying authorization for successive federal habeas petition. Application denied.