Ana Cardona, sentenced May 1,
1992, in Florida (USA)
Ana Cardona, a thirty-year-old Cuban
immigrant living in Miami, was convicted of killing her three-year-old
son in 1990. The child's body had been found in Miami Beach but
remained unidentified for several weeks. The local press pushed the
story strongly, dubbing the child "baby lollipops" prompted by the
shirt he was wearing when found. The child was greatly undernourished
and had been beaten savagely over most of his life, finally dying from
blows to the head from a baseball bat.
Cardona always denied abusing her
child. Cardona's primary defense was that her lover, Olivia Gonzalez,
had repeatedly beaten the child, finally killing him. Cardona claims
that she lacked the courage to defend her child and took cocaine to
escape from the horror of the beatings. She also produced evidence of
her troubled upbringing in Cuba and of the severe emotional impact on
her of the death of the victim's father.
Cardona's lesbian lover, Gonzalez,
had testified against Cardona in return for a forty-year sentence for
second degree murder. Although Gonzalez admitted helping to beat the
boy and helping to dump the body in Miami Beach, she apparently was
able to place the primary blame for the homicide on Cardona. Apropos
of the earlier generic description of the monsterization of capital
defendants, Cardona's defense attorney noted: "As this case unfolded,
it became clear that Ana Cardona was going to be held up to our
community as a monster...."
It appears likely that any negative
effect of Cardona's lesbian relationship with Gonzalez was lost in the
overwhelming horror of the mistreatment of the victim. The trial judge
concluded that "the long period of time over which this baby was
subject to torture, abuse, pain suffering separates this crime from
all other crimes seen in the Dade County Courthouse within the memory
of anyone working in this building."
Press reports suggested that Cardona
was held particularly responsible because she was the boy's mother, so
presumably a jury would have been even more concerned to learn of this
horrible child abuse in the context of a lesbian relationship.
However, nothing indicates that if Cardona's lover had been a man
rather than a woman that she would have avoided the death penalty.
Ana Maria Cardona Back on
Death Row for Murder of "Baby Lollipops"
By Jorge Casuso -
June 10, 2011
The Miami mother convicted of murdering her
three-year-old child Lazaro "Baby Lollipops" Figueroa in 1990 was
sentenced to death by a Miami-Dade judge Friday.
Judge Reemberto Diaz's sentencing puts 50-year-old
Ana Maria Cardona back on death row, where he had been placed after
being convicted and sentenced to die in 1992, becoming the first
Florida woman to be sentenced to death for killing her own child.
After the conviction was later overturned, a jury
last year found Cardona guilty of the gruesome murder for the second
time and recommended the death sentence again. On Friday, Judge Diaz
"Ana Maria Cardona, you have forfeited your right
to live," Judge Diaz said as he handed down the sentence, according to
a report on NBC Miami. "The weight of the aggravating factors is
overwhelming. She knew what she was doing. Lazaro was tortured to
death, he was mistreated his entire short life."
After Diaz handed down the sentence, Cardona wept.
The murder drew headlines after Lazaro's body was
found in front of a Miami Beach mansion in 1990. His bones had been
broken, and he had been starved, beaten and bitten.
Police called him "Baby Lollipops" after the design
on the shirt he was wearing.
According to the Sentencing Order, Lazaro was
subjected to "severe torture, pain and abuse." The autopsy found that:
Lazaro had two front teeth missing, knocked out two
months apart, which would have caused a "substantial amount of pain,
bleeding and tears..
The boy's frenulum "was torn torn to the point
where the lips detached."
Lazaro's "belly was sunken and the bones of his
pelvis and individual ribs stuck out."
The bone of his left arm "was fixed at a ninety
degree angle" and his "right leg was smaller than the left."
The diaper Lazaro was wearing when he was found
"was soiled to the extent that it almost formed a cast of excrement
around the victim's pelvis."
There were many other injuries.
Miami jury recommends death sentence for 'Baby
The first woman sent to Florida Death Row for
killing her own child may be headed back there after a Miami-Dade jury
By David Ovalle - The Miami Herald
October 15, 2010
For the second time, a jury has declared Ana Maria
Cardona should be executed for starving, torturing and beating her
toddler son known as "Baby Lollipops.''
By a vote of 7-5, jurors on Thursday recommended
the death penalty for Cardona, who was convicted in July of murdering
Lazaro Figueroa, whose badly beaten body was discovered in the bushes
of a Miami Beach home in November 1990.
After the jurors filed out of the courtroom,
Cardona's clenched jaws gave way to sobbing as she threw her arms
tightly around defense attorney Teresa Enriquez.
Cardona, 49, will be the second woman currently on
Florida Death Row if Miami-Dade Circuit Judge Reemberto Diaz follows
the jury's recommendation -- and judges usually follow jurors'
"This was an incredible task and a victory for that
beautiful little Lazaro, who suffered living such a horrible
existence,'' said Miami-Dade State Attorney Katherine Fernández
Rundle, who as a prosecutor presented the case to a grand jury for
indictment in 1991.
It would be Cardona's second trip to Death Row.
Back in 1992, jurors convicted Cardona, and she was sentenced to
execution, the first woman in Florida to be sent to Death Row for
murdering her own child.
Sixteen women have received the death penalty in
the state's history. Only two have actually been executed. The others
have either had their sentences commuted or been released.
In Cardona's case, the Florida Supreme Court
overturned the conviction and a new trial was granted. She was
convicted a second time this July of murdering the toddler.
Unable at first to identify him, police dubbed the
child "Baby Lollipops'' for the candy design on his T-shirt.
Detectives later arrested Cardona, who had fled
with her two children, and her lover, Olivia Gonzalez, to the Orlando
Cardona gave conflicting accounts of the toddler's
final days, including a tale that he had hit his head on a bed and
they dumped his body hoping a wealthy person would find him and nurse
him back to health.
At the original trial, Gonzalez was the
prosecution's key witness -- she testified that Cardona hated the boy,
and for months beat and starved the child, finally inflicting a fatal
blow with a baseball bat.
Cardona blamed Gonzalez and her own cocaine habit
for failing to stop her lover's child abuse. Jurors convicted Cardona
and, by an 8-4 vote, recommended a death sentence.
Gonzalez pleaded guilty to second-degree murder and
was sentenced to 40 years in prison. Under old sentencing rules,
Gonzalez served only 19 years and because of good behavior is now
In 2002, a sharply divided Florida Supreme Court
tossed out Cardona's conviction, saying prosecutors failed to reveal
reports chronicling interviews with Gonzalez in which she gave
conflicting accounts of the child's death.
At this year's trial, prosecutors did not call
Gonzalez as a witness, but instead relied on Cardona's own tape
recorded statement to police, and medical evidence showing Lazaro's
For the defense, Cardona's attorneys suggested the
real culprit might have been a 14-year-old mentally challenged Miami
Beach girl who confessed to the crime, then recanted, during the
police investigation. Investigators discounted the girl, believing she
was fed intimate details of the crime by an overzealous state child
During testimony last week in the penalty phase,
prosecutors Susan Dannelly and Kathleen Pautler needed to show the
"heinous, atrocious and cruel'' nature of the crime. Again, they
relied on the photos and medical testimony depicting the shocking
condition of Lazaro's corpse.
Extremely malnourished, Lazaro weighed only 18
pounds, about half what he should have for his age. Beatings had torn
away the tissue between his lips and gums, making eating, drinking and
His left arm was permanently bent at a 90-degree
angle. His head had been bashed repeatedly and his diaper, soiled and
held together with duct tape, had caused an infection.
"This is child torture, in my opinion,'' Medical
Examiner Bruce Hyma testified last week.
Lazaro even had pressure sores on his back and
head, and deep ligature marks in-between his toes -- showing he had
been restrained in the closet of their Miami home, Dannelly told
"This is about the torturous nature of his life and
his injuries. About how he spent his days, from the time he woke up in
his morning to the time he fell asleep with that pain,'' Dannelly
said. "It's about what that child went through.''
Assistant public defenders Enriquez, Edith Georgi
and Liesbeth Boots portrayed Cardona as scarred from an unloving and
abusive childhood in Cuba.
They called numerous inmates and Miami-Dade
corrections officers to say how Cardona has turned into a model
inmate, role model and deeply devout Christian.
Defense attorneys also called Cardona's children,
Juan Puente, 29, who is in jail, and her daughter, Taimy Cardona, 25,
a college graduate.
They talked about their attempts to bond with their
"Don't have Juan and Taimy victimized by another
death in the family,'' Georgi said.
Jurors deliberated less than two hours before
reaching their recommendation.
Ana Cardona found guilty in 1990 murder
July 9, 2010
After deliberating for nearly a day and a half, the
jury found the mother of a baby boy who had been abused and beaten to
death more than 20 years ago guilty.
The decision handed down Friday morning means the
defendant -- Ana Maria Cardona, now 48 -- will face the death penalty.
The death penalty trial date was set for August 30th.
The jurors found Cardona guilty of 1st degree
murder. Guilty of aggravated child abuse and guilty as charged.
Cardona grimaced only slightly when verdict was
read. Jurors and attorneys were instructed by the judge not to discuss
the case while the death penalty hearing is pending. In the end she is
guilty of the same charges that were initially filed 20 years ago.
Three-year-old Lazaro Figueroa was killed in
November of 1990. His body was found dumped beneath a hedge in the
yard of a Miami Beach home. The boy had been starved, beaten and
burned. He weighed only 18 pounds when he was murdered, half the
weight of what he should have been. The boy, whose identity was not
known when his body was discovered, was given the name "Baby
Lollipops" because of the tiny white t-shirt he was found bearing an
array of lollipops on the front.
In the first trial, his mother -- Cardona -- was
convicted murder and sentenced to die, largely on the strength of
testimony from her lover, Olivia Gonzalez Mendoza, who told the
original jury in the case that Cardona tortured her son in the
efficiency apartment they shared, starving the boy and leaving him
tied up when she would go out to buy the crack cocaine she was
The Florida Supreme Court later overturned that
conviction after ruling that prosecutors failed to share interviews
with defense attorneys; the interviews with Gonzalez-Mendoza
contradicted her own testimony at trial.
Prosecutors characterized the boy's death as the
result of pre-meditated, aggravated abuse in asking again for a fire
degree murder conviction.
The defense had argued that Cardona may have been a
drug addict and lousy mother, but not a killer. That while she may
have neglected her son, she didn't murder him.
In the retrial, the defense claimed Cardona gave
her son to a mysterious baby sitter months before his death, and that
Gloria Pi, the teenager who confessed and later recounted may have
Pi testified in the retrial that she did not know
Lazaro Figueroa, had never even seen the boy, and that her initial
confession was the result of prompting by detectives who put words in
Jurors Thursday listened as a court clerk read
scores of pages of Pi's testimony.
Earlier Thursday, the jury asked to hear a replay
of testimony from a key witness.
The 12-member panel had asked to review the
testimony of Gloria Pi, a mentally challenged 14-year-old who
confessed to the murder in 1990, but later recanted. The confession
was discounted then as not credible. But the jury in this retrial of
the murdered boy's mother had been asked to view it as a reason for
Ana María Cardona
July 8, 2010
On Thursday, 12 jurors will retreat to decide the
fate of Ana Maria Cardona in the notorious 1990 Baby Lollipops murder
case. Their task -- and the decades-old questions they must reconcile
-- will not be easy.
Was Cardona a callous mother who starved, tortured
and beat her 3-year-old son for months, leaving his corpse in the
bushes of a Miami Beach house?
Or was she simply a bad mother who allowed her son
to be pawned off to a mysterious babysitter in the months before the
Did Miami Beach Police, as her defense teams
contends, coerce Cardona into giving an incriminating account of her
son's demise? Or did Cardona, as prosecutors allege, confess to
details that detectives never knew until later in the probe?
Two decades of legal wrangling culminated Wednesday
as prosecutors and the defense attorney explained their interpretation
of the evidence during closing arguments in Cardona's trial.
difficult to look at it. It hurts. It is outrageous that a child could
be found in this condition,'' prosecutor Kathleen Pautler said as she
showed graphic autopsy photos of Lazaro Figueroa's emaciated body. ''That's not felony child abuse.
This is aggravated. This is starvation. This is malnutrition.''
Countered Assistant Public Defender Edith Georgi: ''Emotion is not evidence. The
sadness you feel in your heart is not the basis for a verdict. The
prosecutors wants to convict Ana Cardona of first-degree murder based
on no eyewitness testimony and no physical evidence.''
Wednesday's closing arguments concluded a bitterly
fought 3 ½ week-trial that cast a new spotlight on the 20-year-old
When the toddler's body was first discovered in
November 1990, no one knew who he was. He was known only by the design
on his T-shirt: Baby Lollipops. Miami Beach Police arrested Cardona, a
cocaine addict who had lived in a Miami efficiency with her two other
children and lover, Olivia Gonzalez Mendoza.
In 1992, Cardona was convicted and sentenced to
death after Gonzalez testified that her lover beat, tortured, bound
and hid the boy inside the efficiency.
The Florida Supreme Court overturned the conviction
in 2002 because prosecutors failed to disclose some of Gonzalez's
statements to investigators. Gonzalez, who pleaded guilty and served
nearly half of a 40-year prison sentence, was freed in 2008.
Cardona, 48, is charged with first-degree murder
and aggravated child abuse, and again faces the death penalty. In the
first trial, Cardona blamed Gonzalez. This time, her lawyers insisted
Cardona allowed Gonzalez to give the child to an unknown baby sitter
in the months before the boy's corpse was found.
Neither side called Gonzalez as a witness.
Prosecutors relied on witnesses who described
Cardona's erratic lifestyle and abusive behavior toward Lazaro, plus
excruciating medical examiner testimony and photos that showed months
of physical abuse -- a mangled arm, skull fractures, a cheek burn.
Also key: Cardona's statement to police, in which she admitted to
dumping the boy's body on Miami Beach, but after he fell and hit his
head on a bed.
Georgi insisted Miami Beach Police threatened
Cardona and coerced her into a false confession, feeding her details
of the crime, some that proved to be wrong.
But prosecutor Susan Dannelly countered that
Cardona admitted to police that she had to hide Lazaro from her
landlords -- a fact detectives couldn't have known until later in the
probe. ''If they were going to
plant a story, it would have been a hell of a lot better than this
one,'' Dannelly said of Cardona's version of events. ``It sure
wouldn't have been as self-serving.''
Where Lazaro lived in the final months before his
death became a central aspect for both sides.
Georgi, on Wednesday, stressed that landlords of
the tiny Miami efficiency never saw the boy, and there was no
eyewitnesses or blood evidence to show he was abused there.
She also raised the possibility that Lazaro might
have been been in the care of a 14-year-old Miami Beach girl, Gloria
Pi, who confessed to intimate details of the crime but later recanted.
Perhaps, Georgi suggested, police also bullied Pi into confessing.
Investigators have long believed the mentally
disabled Pi, who denied the killing in discombobulated testimony this
month, was fed information by an overzealous state welfare worker.
Retired police Sgt. Joe Matthews testified that he discounted Pi after
she eagerly admitted to causing injuries that Lazaro did not have.
But Pi's confession raises enough doubt, Georgi
Lazaro?'' Georgi asked jurors. ''We
don't know. But the state has not proven it was Ana."
New Trial Date Set For Mother Of 'Baby
April 16, 2010
A mother accused of fatally beating her child more
than 20 years ago will get a new trial after being granted an appeal.
Ana Maria Cardona, now 49, originally faced the
death penalty for the death of her 3-year-old son. But the Florida
Supreme Court overturned the sentence and ordered a new trial in 2002.
So far, that new trial has been delayed for 8 years
and Friday Cardona was in court where a new trial date was scheduled
for May 10th. Cardona faces first-degree murder and aggravated child
In 1990, Cardona's 3-year-old son Lazaro Figueroa's
small, lifeless body was found under a hedge in Miami Beach. There was
evidence that the child had been tortured because his body had bite
marks and bruises on his head. Police at the time dubbed him Baby
Lollipops because of the design on the T-shirt he wore.
Cardona and her former girlfriend Olivia
Gonzalez-Mendoza were charged in the death of the child.
Gonzalez-Mendoza pleaded guilty to second-degree murder and aggravated
child abuse charges. She testified against Cardona and served 15 years
of a 40-year sentence in prison and was released Jan. 1, 2008,
according to CBS4 news partner The Miami Herald.
Cardona appealed her conviction a number of times
on various grounds, including a plea to the US Supreme Court, but all
were denied until she made an appeal to the Florida Supreme Court in
It was rejected in 2000, but she appealed the
rejection and two years later on July 7, 2002, the Florida Supreme
Court reversed Cardona's conviction and sentence and remanded for a
new trial citing a "Brady violation committed by the State."
The Florida Supreme Court found that the State
withheld material criminal investigative reports of interviews with
Gonzalez-Mendoza, the co-defendant, which contradicted her testimony
against Cardona at trial. By failing to disclose these reports, the
State prevented the defense from impeaching Gonzalez' credibility as
the State's key witness.
Her new trial was first set for 2006, and delayed
until 2008, and delayed yet again.
Judicial Circuit, Dade County, Case #90-48092
Judge: The Honorable David L. Tobin
Attorney, Trial: Lee Weissenborn – Special Public Defender
Attorney, Retrial: Edith Georgi – Assistant Public Defender
Attorney, Direct Appeal: Lee Weissenborn – Special Public Defender
Attorney, Collateral Appeals: Maria Perez-Garcia – CCRC-S
Circumstances of Offense:
Cardona was convicted and sentenced to death for the long-standing
abuse and murder of her three-year-old son Lazaro Figueroa.
The body of a severely beaten unidentified child was
found abandoned in the Miami Beach area on 11/02/90. The boy was
later determined to be Lazaro Figueroa, the youngest child of Ana
Marie Cardona. Cardona was subsequently arrested in St. Cloud,
Florida in connection with the murder.
The circumstances surrounding the abuse and murder of
Lazaro were revealed during Cardona’s trial: When Cardona’s well-off,
drug-dealing boyfriend was murdered, he left her a $100,000 estate,
which she squandered in a matter of months. Cardona had two children
from him, the youngest being Lazaro.
penniless, left her children with friends and family, and they were
subsequently taken by the social services. Eventually, the children
were returned to their mother, and during this time, Cardona became
romantically involved with Olivia Gonzalez-Mendoza. The two women
hardly worked, and supported themselves, their children and their drug
habits by shoplifting.
children were returned to her, Cardona began horrific and frequent
abuse of Lazaro, as she blamed him for her fall from wealth. Lazaro
was often tied to the bed, locked in a closet, or left in the bathtub
with extremely cold or hot water. When his body was found, it was
covered in bruises and bedsores, and the child weighed only 18 pounds.
Cardona split Lazaro’s head open with a baseball bat, and when the
child would not stop screaming, she beat him to death. Cardona and
Gonzalez-Mendoza dumped the body in a Miami Beach neighborhood, fled
to Orlando and were eventually apprehended in St. Cloud.
Medical examiners testified that Lazaro was dying from
the extreme abuse and neglect he suffered at the hands of his mother
and her lover even before he was fatally beaten with the bat that
day. Lazaro had endured numerous tortures prior to his death,
suffering brain damage due to untreated meningitis, anemia,
malnutrition and spinal cord damage.
and Naturalization Services in Miami have placed a detainer on Ana
Gonzalez-Mendoza was convicted of Aggravated Child Abuse and Second
Degree Murder. Gonzalez-Mendoza was sentenced to 15 years and 40
years, respectively, for her part in the murder of Lazaro Figueroa.
12/06/90 Defendant arrested.
01/11/91 Defendant indicted on:
Count II: Aggravated Child Abuse
03/31/92 The jury found the defendant guilty on both counts.
03/31/92 Upon advisory sentencing, the
jury, by an 8 to 4 majority, voted for the death penalty.
04/01/92 The defendant was sentenced as followed:
First-Degree Murder – Death
Count II: Aggravated Child Abuse – 15 years
Factors Contributing to the Delay in the
Imposition of the Sentence:
Motion to Vacate Judgment and Sentence (3.850) took over three years
to reach a denial. On 07/11/02, the Florida Supreme Court granted
Cardona’s 3.850 Appeal and remanded her case for a new trial. The
retrial is set for 2006.
a Direct Appeal in the Florida Supreme Court on 05/04/92. In that
appeal, Cardona argued that a limited jury instruction should have
been given in conjunction with the evidence of abuse presented to the
jury, and that the court erred in refusing to consider non-statutory
mitigating evidence. Cardona also raised the issued that her
co-defendant received a lesser sentence for her part in the murder.
The Florida Supreme Court affirmed the convictions and sentence of
death on 06/02/94.
Cardona filed a Petition for Writ of Certiorari in the United States
Supreme Court, which was denied on 02/21/95.
03/24/97, Cardona filed a Motion to Vacate Judgment and Sentence
(3.850) in the State Circuit Court. When that motion was denied on
05/26/00, Cardona steadfastly filed an appeal of that decision in the
Florida Supreme Court on 06/26/00. On 07/11/02, the Florida Supreme
Court reversed Cardona’s conviction and sentence and remanded for a
new trial citing a Brady violation committed by the State. The
Florida Supreme Court found that the State withheld material criminal
investigative reports of interviews with Olivia Gonzales-Mendoza, the
co-defendant, which contradicted her testimony against Cardona at
trial. By failing to disclose these reports, the State prevented the
defense from impeaching Gonzales credibility as the State’s key
Cardona filed a
Petition for Writ of Habeas Corpus in the Florida Supreme Court on
05/22/01. On 07/11/02, Cardona’s conviction and sentence were
reversed when the Florida Supreme Court granted her 3.850 Appeal. As
such, her Petition for Writ of Habeas Corpus was denied as moot.
Supreme Court of Florida
Cardona v. State
Ana Maria CARDONA, Appellant, v. STATE of Florida, Appellee.
July 11, 2002
Todd G. Scher, Litigation Director, Capital
Collateral Regional Counsel-South, Fort Lauderdale, FL, for
Appellant.Robert A. Butterworth, Attorney General, and Lisa A.
Rodriguez, Sandra Jaggard, and Stephen D. Ake, Assistant Attorneys
General, Tampa, FL, for Appellee.
Ana Maria Cardona appeals an order of the circuit
court denying a motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850. We have jurisdiction. See art. V,
§ 3(b)(1), Fla. Const. We conclude that we are compelled to reverse
and that a new trial is required because the State committed a Brady1
violation by failing to disclose material criminal investigation
reports of the State's extensive interviews with Olivia
Gonzalez-Mendoza (“Gonzalez”), Cardona's codefendant and the State's
key witness against Cardona.
Cardona and codefendant Gonzalez were charged with
first-degree murder and aggravated child abuse for the death of
Cardona's three-year-old son, Lazaro Figueroa, after Lazaro's battered
body was found in the bushes of a Miami Beach residence on November 2,
1990. See Cardona v. State, 641 So.2d 361, 361 (Fla.1994). On
February 14, 1992, Gonzalez changed her previously entered not guilty
pleas to guilty in exchange for a reduced charge of second-degree
murder pursuant to a plea arrangement in which Gonzalez agreed to
testify against Cardona.
The critical issue in this case was whether
Gonzalez, rather than Cardona, was the prime perpetrator of the
escalating abuse that culminated in the child's death. At trial, the
State's strategy, based on Gonzalez's testimony, was to paint Cardona
as the more culpable defendant. The withheld reports of the
interviews, which were generated before Gonzalez's plea agreement with
the State, contradicted her subsequent trial testimony in certain
material points. Had the reports been given to the defense, they
could have seriously undermined Gonzalez's credibility, Gonzalez's
version of events, and the State's portrayal of Cardona as the more
The jury found Cardona guilty and recommended death
by a vote of eight to four without knowing of the significant
contradictions in Gonzalez's initial version of the crime that she
gave to the State. Gonzalez was not only the key State witness but
the only witness to the escalating abuse the State claimed Cardona
committed against the child. The trial court found only one
aggravator, that the murder was committed in a “heinous, atrocious or
cruel” (“HAC”) manner. See id. at 363. However, the trial court
gave this aggravator “overwhelming and enormous weight” because of the
“long period of time over which this baby was subject to torture,
abuse, pain, and suffering.” Id.2
Because of the weight assigned to the HAC aggravator and the facts in
the record detailing the extensive suffering of the victim, the trial
court found that the single aggravator outweighed the mitigators, see
id., and sentenced Cardona to death without knowing of the significant
contradictions in Gonzalez's initial version of the crime regarding
the escalating pattern of abuse. On direct appeal, this Court
concluded that the death sentence was proportionate because our review
of the record led us to “agree with the trial court that, in light of
the extended period of time little Lazaro was subjected to the
torturous abuse leading to his death, the ultimate sentence is
warranted in this case.” Id. at 365. We also rejected Cardona's
claim regarding the relative culpability of Gonzalez because “the
record in this case supports the trial court's finding that Cardona
was the more culpable of the two defendants” and “[t]hus disparate
treatment is justified.” Id. On direct appeal, this Court did not
have the benefit of the significant contradictory version of events
that Gonzalez earlier gave to State investigators.
Cardona timely filed a motion for postconviction
relief and filed an amended motion raising thirteen claims. 3
hearing was held, at which the trial court granted an evidentiary
hearing on seven claims,5
and summarily denied the remaining claims. After the evidentiary
hearing, the trial court denied relief on the remaining claims.
Cardona now appeals the trial court's denial of postconviction relief,
raising nineteen issues for this Court's review.6
Because we conclude that Cardona's claim of a Brady
violation is dispositive, we focus our analysis on that claim only.
Cardona's Brady claim is based upon the State's failure to disclose
three typed criminal investigation reports and a proffer letter from
Gonzalez's attorney to the State outlining the substance of what
Gonzalez was prepared to testify to at Cardona's trial. The typed
criminal investigation reports were generated as a result of three
interviews between the State's investigators and Gonzalez on September
19, 24, and 30, 1991. Both the reports and the proffer letter were
generated before the State accepted an agreement that Gonzalez would
plead guilty to a reduced charge of second-degree murder in exchange
for Gonzalez's testimony at Cardona's trial.
Following an evidentiary hearing on the Brady
claim, the trial court made the following findings and conclusions:
As to defense counsel's contention that Brady
material was withheld by not providing counsel with the investigators'
reports from the State Attorney's Office, it is abundantly clear to
this Court that those reports would have assisted defense counsel in
impeaching Olivia Gonzalez Mendoza, but that she was sufficiently
impeached to a point where they needed not even call the polygraph
examiners[ 7] to impeach her testimony. Thus, the testimony of the
prior co-defendant was not necessary to obtain the defendant's
conviction. Thus there was no prejudice to the defendant by failing
to produce the 2 reports, or the proffer letter from Gonzalez
There was no reasonable probability that any
omitted evidence would have changed the conclusion of this jury.
In Rogers v. State, 782 So.2d 373, 378 (Fla.2001),
we quoted with approval from the United States Supreme Court's
decision in Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144
L.Ed.2d 286 (1999), where the Court summarized the important
constitutional principles arising from the State's failure to disclose
material evidence to the defendant:
In Brady, this Court held “that the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.” We have since held that the duty to disclose such
evidence is applicable even though there has been no request by the
accused, and that the duty encompasses impeachment evidence as well as
exculpatory evidence․ In order to comply with Brady, therefore, “the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in this case,
including the police.”
These cases, together with earlier cases condemning
the knowing use of perjured testimony, illustrate the special role
played by the American prosecutor in the search for truth in criminal
trials. Within the federal system, for example, we have said that
the United States Attorney is “the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done.”
Id. at 280-81, 119 S.Ct. 1936 (citations and
footnote omitted). The principle necessitating reversal when the
State fails to disclose to the defense material favorable evidence was
espoused in Brady itself:
The principle ․ is not punishment of society for
misdeeds of a prosecutor but avoidance of an unfair trial to the
accused. Society wins not only when the guilty are convicted but
when criminal trials are fair; our system of the administration of
justice suffers when any accused is treated unfairly․ A prosecution
that withholds evidence on demand of an accused which, if made
available, would tend to exculpate him or reduce the penalty helps
shape a trial that bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a proceeding that does not
comport with standards of justice․
373 U.S. at 87-88, 83 S.Ct. 1194. Therefore, as
stated in Rogers, 782 So.2d at 376-77, errors involving the
suppression of evidence in violation of Brady raise issues of
In order to establish a Brady violation, a
defendant must prove:
 The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching;  that evidence must have been suppressed by the State,
either willfully or inadvertently; and  prejudice must have
Way v. State, 760 So.2d 903, 910 (Fla.2000)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936,
144 L.Ed.2d 286 (1999)). Thus, not every instance where the State
withholds favorable evidence will rise to the level of a Brady
violation necessitating the granting of a new trial, but only those
where there is a determination that the favorable evidence that was
withheld resulted in prejudice. The determination of whether a Brady
violation has occurred is subject to independent appellate review.
See Rogers, 782 So.2d at 377; Way, 760 So.2d at 913.
With respect to the typed criminal investigation
reports, there is no question that the first two prongs of Brady are
satisfied. With regard to the first prong, the trial court found
that the withheld materials would have assisted in the impeachment of
Gonzalez. Thus, there is no question that the evidence is favorable,
which satisfies the first prong of Brady. As to the second prong,
the State does not dispute that it should have but failed to turn over
the reports from the interviews with Gonzalez. Thus, the second
prong of Brady is satisfied.
We next conduct an independent review of the third
prong of Brady; that is whether Cardona was prejudiced by the
nondisclosure or withholding of this favorable evidence. See Rogers,
782 So.2d at 377; Way, 760 So.2d at 913. For Brady purposes, “the
defendant must establish that the defense was prejudiced by the
State's suppression of evidence, in other words, that the evidence was
material.” See Way, 760 So.2d at 912-13. As we explained in Way,
“[a] showing of materiality ‘does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have
ultimately resulted in the defendant's acquittal.’ ” 760 So.2d at
913 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995)). Rather, as the United States Supreme Court has
[T]he materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in
light of the undisclosed evidence, the remaining evidence is
sufficient to support the jury's conclusions. Rather, the question
is whether “the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in
Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting
Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (citations omitted).
Further, the cumulative effect of the suppressed evidence must be
considered when determining materiality. See Way, 760 So.2d at 913
(citing Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555). “It is the
net effect of the evidence that must be assessed.” Way, 760 So.2d at
913 (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)); see
Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555.
The State argues that any impeachment by the
defense through the withheld evidence would have been cumulative to
the impeachment of Gonzalez at trial. Thus, because the State
asserts that any impeachment would have been cumulative, the State
argues it was not material and Cardona cannot satisfy the prejudice
prong of Brady. Specifically, the State asserts that Gonzalez
already was impeached with respect to her bias as a State's witness
when defense counsel elicited testimony that Gonzalez “did not have to
worry about the death penalty anymore” because of her plea. However,
the fact that a witness is impeached on other matters does not
necessarily render the additional impeachment cumulative. See United
States v. Rivera Pedin, 861 F.2d 1522, 1530 (11th Cir.1988) (“We
acknowledge that Ream's credibility had been eroded due to the
testimony the defense elicited from him on cross-examination. The
disclosure of Ream's conversation with Miller, however, would not have
been merely repetitious, reinforcing a fact that the jury already
knew; instead, ‘the truth would have introduced a new source of
potential bias.’ ”) (quoting Brown v. Wainwright, 785 F.2d 1457, 1466
We turn to an analysis of the significance of this
impeachment, noting that Gonzalez was a crucial witness for the State.
Gonzalez was the most important witness to testify as to which of
the two defendants was the more culpable, and to the escalating abuse
the State claimed Cardona committed against Lazaro. Gonzalez was the
only witness who testified to the significant events of the day
preceding Lazaro's death and the day of Lazaro's death.
We conclude that the reports of the undisclosed
interviews contain material inconsistencies on several key points not
addressed at trial that could have seriously undermined Gonzalez's
credibility. Specifically, the reports of the undisclosed interviews
contradicted Gonzalez's trial testimony in four ways that could have
been used as powerful impeachment of Gonzalez at trial: (1) the
description of the events of the day before Lazaro died; (2) the
description of the events of the day Lazaro died; (3) the details of
the abuse described; and (4) the date when Gonzalez last abused
First, with regard to the events of October 31,
1990, the day before Lazaro died, at trial Gonzalez described a
specific incident on the “last day of October” when Cardona “got
pissed off and she hit [Lazaro] with a bat over the head” because
Lazaro was slow in taking off his diapers. Gonzalez stated that
Cardona struck Lazaro with such force that “[a] hole was opened up in
his head. His head was cracked.” Gonzalez explained that the wound
“started bleeding and bleeding and bleeding, and then I put mercury on
it and I applied a plastic band.” This incident occurred “like six
or seven in the evening.” We relied on this testimony in detailing
the facts on direct appeal of the day before Lazaro died:
According to Gonzalez Mendoza, on the last day of
October 1990, Cardona severely beat Lazaro with a baseball bat.
After splitting the child's head open, Cardona locked the little boy
in the closet where he had been confined for the last two months.
Cardona, 641 So.2d at 362.
The report of the September 19, 1991, interview of
Gonzalez regarding this same night materially contradicts her trial
testimony by specifically stating that on the last day of October
nothing unusual had occurred:
Ms. Gonzalez reports that on October 31, 1991[sic],
she worked from 1 P.M. to 7 P.M. at the factory (this information was
verified). Ms. Gonzalez reports that she arrived home at approximately
8 P.M. Ms. Gonzalez reports that she came straight home because she
promised the kids to take them out for Halloween (trick or treating).
According to Ms. Gonzalez, when she arrived home
from work, everything was as usual. Taimi and Juanito were getting
dressed to go out for Halloween. She noticed that Lazaro was in the
closet gagged and bound but had no noticeable injuries. Ms. Gonzalez
reports that she did not notice anything unusual because Lazaro was
always tied in the closet.
When Taimi, Juanito, and Olivia returned home, Ana
Cardona, who had stayed home, was in bed watching television and
Lazaro was still in the closet (as usual ).
Gonzalez was never impeached with regard to the
October 31, 1990, incident graphically detailed by Gonzalez at trial
and relied on by this Court in its discussion of the facts on direct
appeal. See Cardona, 641 So.2d at 362. Cardona could not impeach
Gonzalez because she did not have the inconsistent description of the
events contained in the interviews. The significant contradiction is
that Gonzalez initially stated in the interview that October 31, 1990,
was a usual day and that Lazaro had no noticeable injuries. However,
after meeting with the prosecutors, Gonzalez testified that on October
31, 1990, Cardona struck Lazaro with such force that “[a] hole was
opened up in his head. His head was cracked.”
Gonzalez's trial testimony regarding October 31,
1990, also is contrary to the report of her September 30, 1991,
interview with State investigators, which states: “According to Ms.
Gonzalez, the last time she remembers seeing Ms. Cardona hitting
Lazaro with the wooden bat was approximately a week before his death.”
Moreover, as to Lazaro's massive head wound, the same report states:
“Ms. Gonzalez stated that Ms. Cardona beat Lazaro with the bat very
badly about a month before his death. According to Ms. Gonzalez,
Cardona lacerated Lazaro's head and broke his arm.” (Emphasis
supplied.) October 31 was the day before Lazaro's death, not a week
or a month before. Given the State's themes that towards the end of
Lazaro's life the injuries were inflicted by Cardona, and that
Gonzalez's participation in the abuse was minimal, the impeachment
based on these interview reports would have been valuable.
The second way that the interview reports
contradict Gonzalez's trial testimony was with regard to Gonzalez's
description of the day Lazaro died. At trial, Gonzalez provided the
following description of that day:
GONZALEZ: I came home from work. I opened up the
door to the closet to see the boy, and he started screaming because
his mother was coming behind me, he was frightened of her.
STATE: Was his mouth taped?
GONZALEZ: No, at that moment it was not. I
confronted him with the bat. I told him I was going to hit him if he
did not shut up, but the mother, the defendant, grabbed it from my
hand and stayed with it. When I thought, that she was going to put
tape over his mouth and put him in the closet again. I went to
bathe. When I came out of the bathroom, she told me, “I believe I
killed him.” I went running, looking for him. He was lying down in
the closet, looking up, with a piece of paper in his mouth. I tried
to revive him. I grabbed alcohol, water, I poured water and alcohol
over his head. I tried to pick him up, but no, it didn't do
anything. He stayed immobile. That's when she took him, got him
dressed, put tape around the Pampers, wrapped him in a bedspread, told
me that we had to dump him. I told her about taking him to the
hospital or something. She told me whether I was crazy or was I a
snitch. She went out first to see whether there was anyone out
there. I was terrified and frightened. I had never think such a
thing. I got frightened by her, by the attitude she had. And I
climbed in the car with her, I drove off, drove and drove. I don't
know. I did not know of any fixed place to go to. I went toward
the beach. I drove by Alton Road, and by one of those houses on
Alton Road. She told me to stop. She took the child out of the
bedspread. It fell to the ground. She picked him up with her hands
and she left with him. I stayed with the hand over the steering
wheel like this. I don't know. I don't know where she placed him.
That was all.
We relied on this testimony in reciting the facts
regarding the day of Lazaro's death on direct appeal:
The next day, Gonzalez-Mendoza opened the closet
door and attempted to quiet Lazaro by frightening him with the bat.
When Lazaro began to scream at the sight of his mother, Cardona
grabbed the bat from Gonzalez-Mendoza. Gonzalez-Mendoza then left
the room. When she returned, Cardona told her that Cardona believed
she had killed Lazaro. After dressing the child, the two women took
Lazaro to a Miami Beach residence and abandoned him in some bushes,
where he was later found.
When Cardona learned that the child's body had been
found she and Gonzalez-Mendoza fled to the Orlando area and then to
St. Cloud, where they were later arrested. Cardona told police
various stories about what had happened to Lazaro. Finally, Cardona
claimed that the child had fallen off the bed and injured himself.
When she couldn't revive him, she took the boy to a Miami Beach
residence and left him on a doorstep so the people who owned the house
could help him. Gonzalez-Mendoza concurred in each of the stories.
Cardona, 641 So.2d at 362.
This trial testimony differs significantly from
Gonzalez's previous statements in the interviews on several points.
First, the report of the September 19, 1991, interview states that
Gonzalez reported that she arrived home from work to find Cardona
screaming, “He fell off the bed!” Second, the report of that same
interview does not indicate that Gonzalez went to take a bath, but
rather, it indicates that she found that Lazaro was dead immediately
after seeing Cardona. Third, the report of that interview does not
indicate that Gonzalez ever tried to revive Lazaro. Fourth, the
report of that interview states that Gonzalez reported that she and
Cardona accidentally ended up at a hospital while driving around
looking for a place to dump Lazaro. However, at trial, Gonzalez
testified that before they got in the car with Lazaro's body, Gonzalez
suggested taking Lazaro to a hospital for treatment.
Gonzalez was the only witness who testified as to
the events of that day. Thus, impeachment of her inconsistencies
with regard to the facts of the day's events would have been valuable
to the defense. Particularly valuable would have been impeachment of
Gonzalez's testimony that she was taking a bath while the alleged
fatal blow was inflicted, that she tried to revive Lazaro, and that
she suggested taking Lazaro to the hospital. This testimony
contradicted Gonzalez's earlier statements in the interviews, and
supported the State's themes that Cardona inflicted the fatal blow,
that Gonzalez was a minor participant in the abuse, that Gonzalez
participated only because she was a “battered spouse,” whose abuse of
Lazaro pleased Cardona, and that Gonzalez had far more remorse than
Gonzalez was never impeached with most of the
details regarding this contradictory testimony of the events of the
day Lazaro died because Cardona had no information available with
which to impeach Gonzalez on these points. Although the jury was
made aware through the State's direct examination that when Gonzalez
was apprehended she originally lied by telling the police that the
child suffered the fatal blow when he jumped off the bed, at trial
Gonzalez explained her reasons for lying to the police as follows:
STATE: Why were you lying to Detective Schiaffo?
GONZALEZ: To say that what [Cardona] told me to
GONZALEZ: I was scared that she would have said it
was me because she was going to say it was me, that she was always
going to accuse me. This is why I tried to defend her there.
However, the reason for lying to the police that
Gonzalez gave to the jury at trial no longer existed at the time of
Gonzalez's undisclosed interviews with the State. Thus, Gonzalez
could not have given that same reason to explain the inconsistency
between the undisclosed interview reports and the trial testimony had
the defense been given the opportunity to cross-examine Gonzalez with
the undisclosed report.
The third way the interview reports differ from the
trial testimony is that in her trial testimony, Gonzalez provided
graphic detail to the jury about types of abuse she observed Cardona
inflict on Lazaro. Once again, on direct appeal we relied on many of
these details provided at trial by Gonzalez:
During an eighteen-month period that began after
the children were returned to her, Cardona beat, choked, starved,
confined, emotionally abused and systematically tortured Lazaro. The
child spent much of the time tied to a bed, left in a bathtub with the
hot or cold water running, or locked in a closet. To avoid changing
Lazaro's diaper for as long as possible, Cardona would wrap duct tape
around the child's diaper to hold in the excrement.
Cardona, 641 So.2d at 362.
In contrast to these details, the report of the
interview of September 19, 1991, states only:
According to Ms. Gonzalez, Lazaro Figueroa was
emotionally and physically abused on a daily basis by both Ana Cardona
and herself. Since the abuse occurred so often, [Gonzalez] stated
she could not be specific on times dates and locations.
The report of the September 30, 1991, interview
Ms. Gonzalez reports that the first time she
remembers hitting Lazaro was during the time that Ms. Gonzalez and Ms.
Cardona were living in the hotels. However, Ms. Gonzalez does not
remember what hotel they were living in, nor a specific incident when
she hit Lazaro, or why she hit him.
Gonzalez's lack of recollection in the interviews
is in marked contrast to her graphic descriptions for the jury of
specific instances of abuse at every location where she and Cardona
ever lived. Her admission in the interviews that she and Cardona
abused the boy on a daily basis also is contrary to her protestations
at trial that she did not abuse the boy as much as Cardona.
The fourth way in which the interview reports
contradict the trial testimony is with respect to when Gonzalez
herself last abused Lazaro.9
At trial, on her redirect examination, Gonzalez expressly disavowed
striking Lazaro with the bat in the months before his death:
STATE: You hit Lazaro in the head with a bat?
STATE: During all those months prior to his death?
STATE: Do you know who did?
STATE: Who did?
GONZALEZ: [Cardona] did.
The State's position at trial was that although
Gonzalez participated in the abuse of Lazaro, she did so at the behest
of Cardona. In closing argument, the State emphasized that Gonzalez
was not involved in the abuse in the last two months:
However, Olivia Gonzalez came in here and told you
what her participation was. Defense counsel says to you, “Oh well,
you admitted to hitting him with a bat; right?” Yes she did. She
admitted to you, “Yes I did hit him with a bat,” but she has told you,
“I did not hit him in the last couple months of his life.”
The State's theory that Gonzalez did not hit Lazaro
with the bat in the last couple of months leading up to Lazaro's death
is contradicted by the report of the September 19, 1991, interview of
Gonzalez, which states:
Ms. Gonzalez reports that while they were living at
5976 S.W. 3rd Street, approximately one month before Lazaro's death,
Ms. Gonzalez remembers having hit Lazaro with the wooden bat.
According to Ms. Gonzalez, Ms. Cardona let Lazaro out of the closet.
Ms. Gonzalez reports that she was “on drugs” and Lazaro started to
bother her. Ms. Gonzalez was not able to be more specific; however,
she recalls that she hit him with the bat. According to Ms. Gonzalez
she does not remember in what part of Lazaro's body she hit him or how
many times she struck him. After Ms. Gonzalez beat Lazaro with the
bat, Ms. Cardona “Tied him up again, and threw him in the closet.”
Because the State withheld these statements, the
prosecutor was free to buttress Gonzalez's claim that she did not hit
Lazaro in the last few months of his life. The key feature of the
defense was that Lazaro's ultimate death was from head trauma caused
by Gonzalez hitting him with the bat. Even the prosecutor conceded
at the evidentiary hearing that “[t]he issue, the big issue was who
hit Lazaro in the head with a baseball bat.” The State's position at
trial, supported solely by Gonzalez's testimony, was that it was
Cardona who beat Lazaro with the bat while Gonzalez “went to bathe.”
The State points to the record of the direct appeal
in which defense counsel already impeached Gonzalez on this point.
In preparation for using Gonzalez as a State's witness, State
investigators had Gonzalez submit to a polygraph examination conducted
by George and Brian Slattery. In that examination, Gonzalez made
admissions that could not come into evidence, but with which defense
counsel did impeach Gonzalez:
DEFENSE: You admitted to Brian Slattery on October
2nd that you hit Lazaro with a bat; correct?
GONZALEZ: Under pressure.
DEFENSE: And you advised that you could have-that
Lazaro could have died after you hit him; correct?
GONZALEZ: No, I did not admit that.
DEFENSE: You didn't admit that?
DEFENSE: Would you like to look at the statement
you gave Mr. Slattery?
GONZALEZ: I don't want to see it.
DEFENSE: But you're sure you didn't say that?
GONZALEZ: No, I've never admitted that I killed
DEFENSE: You never told Mr. Slattery that you
could have caused Lazaro's death by hitting him with the bat?
DEFENSE: You never admitted to Mr. Slattery after
you hit Lazaro he went motionless?
GONZALEZ: No. I don't recall.
DEFENSE: Do you not recall or are you denying that
you ever made those statements.
GONZALEZ: I don't recall, under pressure I made
DEFENSE: Isn't it a fact that after you made these
statements to Mr. Slattery, he asked you if you felt comfortable
saying those things?
Although the State is correct that Gonzalez already
was impeached to some extent on this issue, Gonzalez testified to her
excuse, that she “was under pressure, I didn't know what I was saying.
I was frightened.” Moreover, on redirect, the prosecution elicited
from Gonzalez that Gonzalez was nervous because she did not believe
that the Slatterys were “always working in [her] best interest.”
However, the report of the September 30, 1991, interview indicates
that Gonzalez freely admitted, without the “fear” and “pressure” she
testified to having felt from the Slatterys, that one month before
Lazaro's death Gonzalez “remembers having hit Lazaro with the wooden
bat” but could not be specific as to “what part of Lazaro's body she
hit him or how many times she struck him.” Thus, the suppressed
report would have provided further impeachment of Gonzalez by, at
least, rebutting Gonzalez's excuse that she made the alleged admission
Given the nature of the impeachment that would have
been available to the defense, it also is important to the
consideration of the Brady claim that Gonzalez was not just another
witness for the State-Gonzalez was the State's critical witness, both
in establishing Cardona's guilt on first-degree murder and in
establishing HAC, the sole aggravator found by the trial court in the
penalty phase. At the guilt phase, the prosecutor argued that
Cardona “participated in a greater amount of the abuse than Olivia
Gonzalez did. That's the reason why, if the State needed witnesses
and we have to choose between a rock and a hard place, that's why
Olivia Gonzalez was brought before you as a witness. Olivia Gonzalez
came in here and told you what happened.” The importance of Gonzalez
to the State's case was made even clearer during the prosecutor's
closing argument at the penalty phase:
Where would you-where would we be without her?
Where would we?
What would be known about this case had Olivia
Gonzalez not testified?
There would have been a very large hole in the case
that three months where this defendant, where this defendant binds and
gags her child and puts him in this closet.
If Olivia Gonzalez was not here to tell you where
Lazaro Figueroa was there would be no way to show that this defendant
bound and gagged her own child and left him in this closet.
As defense counsel testified at the evidentiary
hearing, once Gonzalez became the State's witness, the “best strategy
in the case in terms of the physical evidence ․ was going to be to
indicate to the jury that Ms. Gonzalez was, in fact, the person who
had caused the death of the child.” Gonzalez became a “[v]ery
significant” witness for the State. Kassier explained his strategy
for his cross-examination of Gonzalez:
[M]y first objective was to make sure that the jury
understood that she had ultimately admitted and, in fact, testified at
deposition that she had administered one or two blows that, according
to the Medical Examiner, was, in fact, fatal blows. I felt that was
the most critical piece of evidence I had to get from her.
I wanted also to establish to the jury she had lied
in the past when it was convenient for her. She was every bit as
much facing the possibility of the death penalty at the time that she
took her plea with the State.
And I was basically trying to challenge her
credibility as to any point where she tried to absolve herself of
guilt or shift the blame for the child's death on to Ms. Cardona.
At trial, Gonzalez minimized her own role in any
abuse leading up to Lazaro's death and claimed she participated only
to “please” Cardona with whom she was “romantically involved.”
Cardona, 641 So.2d at 361.10
Indeed, the testimony of other witnesses as to the ongoing abuse and
mistreatment of Lazaro implicated Gonzalez to a greater extent than
suggested by the State's theory. Thus, the importance of impeaching
Gonzalez with statements that she made to the prosecution before trial
rests on what would have been Cardona's ability to further her theory
that Gonzalez inflicted the fatal blow, or at least substantially
participated in the abuse towards the end of Lazaro's life.
Finally, critical to the issue of Gonzalez's
credibility as a witness at trial, and thereby important to our
materiality consideration, the contradictions between Gonzalez's
pretrial statements to the prosecutors and her testimony at trial
after meeting with the prosecutors suggests coaching by the State of
its most important witness. Coaching is suggested because the
testimony that was altered between the time of Gonzalez's three
interviews and the trial parallels the State's themes at trial-that
Cardona was the primary abuser and Gonzalez participated to a much
lesser extent, and only to the extent that she was a “battered spouse”
seeking Cardona's approval, that Cardona inflicted the fatal wounds,
and that Gonzalez attempted to help Lazaro on the day of his death and
Cardona did not.
When a particular witness is crucial to the State's
case, evidence of coaching is especially material to that witness's
credibility. See Rogers, 782 So.2d at 384. The defense could have
used evidence of Gonzalez's changed story to further fuel its
cross-examination of Gonzalez that the details of Gonzalez's story
were the product of coaching. See Kyles, 514 U.S. at 443, 115 S.Ct.
1555 (stating that the implication of coaching “would have fueled a
withering cross-examination, destroying confidence in [the witness's]
story”). The implication of coaching would have added a new source
of bias for the jury to consider when weighing Gonzalez's credibility
and testimony. See Rivera Pedin, 861 F.2d at 1530; Brown, 785 F.2d
The trial court concluded that the third prong of
Brady was not met because Cardona was “sufficiently impeached.”
However, as discussed above, the availability of the three interviews
would have provided additional valuable impeachment of Gonzalez's
testimony. The inconsistent versions of critical events “would not
have been merely repetitious, reinforcing a fact that the jury already
knew; instead, ‘the truth would have introduced a new source of
potential bias.’ ” Rivera Pedin, 861 F.2d at 1530. The
contradictory versions of significant events, particularly in light of
the implication of witness coaching, is qualitatively different from
the matters on which Gonzalez was impeached.
The trial court concluded that Gonzalez's testimony
was “not necessary to obtain the defendant's conviction,” and thus
there was no prejudice. However, the key to a finding of prejudice
is whether the withheld evidence undermines our confidence in the
result of the guilt and penalty phases. We conclude that the
additional impeachment in this case does exactly this because it casts
doubt on the veracity of Gonzalez's accounts of the history of abuse
by Cardona and the events immediately preceding Lazaro's death. By
withholding the interviews, which the State conducted for the alleged
purpose of determining how Gonzalez would testify at trial, the State
was then free to elicit testimony from Gonzalez at trial that
contradicted Gonzalez's original statements in the interviews. The
State then could use these themes (which also contradicted Gonzalez's
original statements in the interviews) in its closing argument.
Because of the State's reliance on Gonzalez as its
key witness, both to obtain its conviction of first-degree murder and
to argue for the death penalty, we conclude that impeaching Gonzalez
as to these material inconsistencies could have further undermined
Gonzalez's credibility before the jury, and thus bolstered the
defense's contention that Gonzalez, and not Cardona, was the primary
actor in the abuse and death of Lazaro. In turn, the jury's
assessment of the relative culpability of Gonzalez and Cardona could
have affected its decision on whether to return a second-degree,
rather than a first-degree, murder conviction.
If the jury had disbelieved Gonzalez, this could
have affected not only the jury's evaluation of guilt, but also its
recommendation of death. Even without this devastating impeachment
evidence, the vote was only eight to four in favor of death.
Further, the trial court's assessment of the weight to be given to HAC
in relation to the mitigators could have been affected by serious
doubt as to Gonzalez's veracity.
Finally, this Court's own proportionality review
relied heavily on Gonzalez's version of the events as presented at
trial without the substantial impeachment presented by the undisclosed
We have compared this case to other death penalty
cases to ensure that death is proportionately warranted. This review
leads us to agree with the trial court that, in light of the extended
period of time little Lazaro was subjected to the torturous abuse
leading to his death, the ultimate sentence is warranted in this case.
Cardona, 641 So.2d at 365.
For all these reasons, we hold that “the favorable
evidence could reasonably be taken to put the whole case in such a
different light as to undermine the confidence in the verdict.” Way,
760 So.2d at 913 (quoting Strickler, 527 U.S. at 290, 119 S.Ct. 1936).
Accordingly, we reverse the trial court's order and remand for a new
It is so ordered.
I do not agree with reversing the conviction and
sentence in this case. My first observation from carefully reading
the trial transcript of this trial, which consists of the testimony of
fifty-four witnesses, is that the trial judge made a particularly
conscientious effort to try this case in a fair way. Secondly, in
this case, I believe it is a real advantage in evaluating prejudice
that the trial judge was the same as the postconviction judge.
Having been present to evaluate the witness Gonzalez in person
reinforces the trial judge's finding on this prejudice issue.
Moreover, I conclude from a thorough reading of the
record that there was clearly competent, substantial evidence to
support the following finding by the trial judge in his sentencing
order dated April 1, 1992:
[E]vidence presented in this case showed the victim
was subjected to approximately 18 months of torture during his young
life․ The medical evidence showed that massive abuse occurred
including an unhealed fracture of an arm, skull fractures with
underlying subdural and subarachnoid hematomas one arm that had been
immobilized in which the muscles had been literally turned to bone as
a result of multiple repeated trauma. His two front upper teeth were
missing as a result of blunt trauma. Evidence of internal injuries
after autopsy indicated blunt traumas which went back many months
prior to the victim's death. The medical evidence of child abuse by
the Dade County Medical Examiner was described as the worst he had
ever seen in his medical experience. In addition this 3 year old
child weighed 18 pounds at the time of death. The introduced medical
records available showed at approximately 11 months of age he weighed
The evidence indicated that the victim had suffered
more than child abuse and was actually tortured during 18 months
preceding his death․ Medical evidence indicated that the victim was
kept in bed for such long periods of time that he developed bed sores,
particularly on one side of his head. The evidence showed a slow
methodical torture which defendant knew would ultimately cause death,
sooner or later․
The medical examiner, Dr. Hyma, testified that
based upon the physical injuries of the victim that excruciating pain
was inflicted on this child over a long period of time․
This victim was alternatively [bound], gagged and
tortured as well as being starved to death. The photographs of the
child taken at the location where the body was found show an
undernourished child, one leg much larger than the other, multiple
visible bruises, bloody areas of the head and facial area, soiled
diapers, and other physical signs of recent child abuse.
In addition to these findings, my reading of the
record is that what this trial developed was a long, sordid, and
wretched tale of a cruel, torturous, lingering murder act, which more
accurately can be said to have culminated rather than occurred on the
day this child finally stopped breathing. The fact that this was
such a long, tortuous ordeal, as found by the trial court and
supported by the record, belies the significance of what the majority
holds would have been the basis for prejudicial impeachment.
The record evidence is that the defendant had for a
period of time lived with the victim child's father in an upscale
apartment on Miami Beach. The defendant had three other children,
two of whom lived with her in the apartment provided by the child
victim's father. The father was murdered in an apparent illicit drug
episode. The defendant was the recipient of $100,000 or more following
the death but had to move out of the apartment. The defendant
regularly used cocaine and soon spent the money she had received.
Thereafter, the defendant began leaving the children with various
acquaintances and was gone for weeks at a time. One of these
acquaintances, when she could not reach the defendant, called the
police, and the children were turned over to the State's family
services agencies. However, the defendant did ultimately return,
petitioned the dependency court for return of the children to her, and
the children were returned to her. After the children were returned
to the defendant, the defendant and the children moved from place to
place in Dade County. There were numerous witnesses who testified as
to the maltreatment of this youngest child, to whom the defendant was
apparently particularly cruel for a long period of time.
Approximately 18 months before the child victim's
ultimate death, defendant, while visiting a discotheque in Miami
Beach, developed a relationship with Gonzalez. Gonzalez had a job
and began paying for the support of the defendant and the children.
Cocaine usage increased and turned into crack cocaine usage.
Witnesses testified as to the deteriorating look of the child victim.
Following the child victim's death, the child's
body was deposited in the bushes in front of a home in Miami Beach.
The defendant, Gonzalez, and the other two children then left Miami
and moved to St. Cloud, Florida, near Orlando. Soon thereafter, law
enforcement was able to identify the defendant as the child's mother
and to trace defendant to St. Cloud. When law enforcement located
defendant, she gave them a statement in which she said that the child
had stopped breathing after falling from a bed.
Based upon the evidence in the trial record and
this trial judge's findings, I disagree with the majority's statements
that, “The critical issue in this case was whether Gonzalez, rather
than Cardona, was the prime perpetrator of the escalating abuse that
culminated in the child's death. At trial, the State's strategy,
based on Gonzalez's testimony, was to paint Cardona as the more
culpable defendant.” Majority op. at 970. My reading of the record
is that the evidence was that this defendant was the child victim's
mother, that the defendant first abandoned this child and then abused
this child, and that the defendant was the constant prime abuser.
This was not in reality a trial about relative culpability. This was
a trial about a mother who tortured a child over a long period of
time, resulting in the child's death.
Thus, I disagree with the majority's
characterization that what is claimed to be Brady material involved
“significant[ly] contradictory” versions of events. The four ways
that the majority says that the material could have been used as
impeachment all involve the last day of the torture. I conclude that
the majority misses the point of the evidence and the trial judge's
findings, which was that this death was a result of a slow torture and
that, as I said before, the last day was a culmination-not an
What the majority points to as significant bases
for contradictions in the reports are not direct contradictions of
statements previously made by Gonzalez of her trial testimony. What
the majority points to are, in actuality, negative inferences from
reports of what Gonzalez said. These reports would even have been
very difficult to use in effective impeachment, and the negative
inferences, in comparison to the testimony about the mother's cocaine
use and the long-deteriorating condition of her child, are not all
For example, whether Gonzalez was reported to have
said that she was taking a “bath” has no import in this total picture.
In respect to the report of the September 30, 1991, interview
referred to by the majority, majority op. at 978, I fail to see the
direct contradiction or again how that report would have been
effectively used at trial. At the trial, Gonzalez admitted that she
also beat the child victim with a belt and a bat. Gonzalez admitted
to herself hitting the child once a day while being at various hotels
but stated the defendant hit the victim more often.
Additionally, Gonzalez was deposed for over seven
hours before trial after her plea. She admitted that she had not
told the truth early in the investigation. Gonzalez was subjected to
a wide ranging and effective cross-examination at trial. In that
examination was the following at page 2972 of the transcript:
Q. Seems to me, Ms. Gonzales, you already admitted
under oath, if anything your violence against Lazaro Figueroa got
Q. It escalated, didn't it.
A. Could you repeat the question, please?
Q. Your use of violence and abuse of Lazaro
Figueroa escalated, didn't it?
Q. The longer your relationship went on the more he
Thereafter, in great detail, Ms. Gonzalez's beating
of the child was brought out.
I concurred in reversing Rogers v. State, 782 So.2d
373, 384 (Fla.2001), because in that case there was a Brady violation
which caused prejudice. But here there was not. It is important
that this Court's application of Brady not be so rote that we require
a new trial in cases in which the information not disclosed would not
have made a significant difference in the outcome of the trial.
Based upon the entirety of the trial court record
heard by the trial judge in the courtroom, I clearly believe it to be
reasonable for the trial judge to conclude that there was not
prejudice to the extent that would require a new trial under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
trial court found two statutory mitigators, including the “under the
influence of extreme mental or emotional disturbance,” mitigator,
based on Cardona's “fall from riches to rags” and daily cocaine use
(the court failed to explicitly announce the weight attached), and the
impaired “ability to conform her conduct to the requirements of law,”
mitigator, based upon her cocaine use (little weight). The trial
court also found three nonstatutory mitigators: (1) Cardona did not
meet her biological father until she was twelve; (2) Cardona claimed
that she was raped when she was eleven but her mother and father did
not believe her; and (3) a guardian ad litem for Cardona's other two
children recommended that a life sentence would be in the surviving
children's best interest (the trial court failed to explicitly
announce the weight attached). See id.
claims include: (1) Cardona was denied access to public records; (2)
no adversarial testing occurred due to (a) the cumulative effects of
ineffective assistance of counsel; (b) the withholding of exculpatory
or impeachment material; (c) newly discovered evidence; and (d)
improper ruling of the trial court; (3) the State withheld
exculpatory evidence and presented false evidence, which rendered
defense counsel ineffective; (4) ineffective assistance of counsel at
the penalty phase; (5) ineffective assistance of counsel at the guilt
and penalty phases due to the failure to provide background
information to the mental health consultant; (6) Cardona was
incompetent for trial; (7) the prosecution made comments, asked
questions, and requested instructions, which were given by the trial
court, that diluted the sentencing jury's sense of responsibility, and
defense counsel was ineffective for failing to object; (8) Florida's
statute setting forth the aggravating circumstances is facially vague
and overbroad; (9) Cardona was denied effective assistance of counsel
in pursuing her postconviction remedies because of the rules
prohibiting Cardona's counsel from interviewing jurors to determine if
constitutional error was present; (10) execution by electrocution is
cruel and unusual punishment; (11) Cardona is innocent of the death
penalty; (12) the trial court's sentencing order does not reflect an
independent weighing or reasoned judgment; and (13) Cardona is insane
to be executed.
4. Huff v.
State, 622 So.2d 982 (Fla.1993).
claims include: (1) Cardona's intellectual capacity; (2) defense
counsel's failure to present defense witnesses to testify concerning
intoxication and battered spouse syndrome; (3) defense counsel's
failure to cross-examine Dr. Merry Haber; (4) defense counsel's
failure to present testimony related to the polygraph examinations;
(5) alleged Brady violations concerning Cardona's waiver of rights
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and the State's accommodations to Elizabeth Pastor, who
testified on behalf of the prosecution; (6) defense counsel's failure
to seek change of venue; and (7) defense counsel's failure to present
evidence pertaining to the “Abbott Avenue” defense.
issues raised in this appeal are: (1) ineffective assistance of
counsel during the guilt phase, including: (a) Brady violation
concerning Gonzalez's three interviews and the proffer letter from
Gonzalez's attorney, (b) violation of Giglio v. United States, 405
U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), as to Gonzalez's
testimony, (c) Brady violation regarding Dr. Hyma, (d) Brady violation
regarding Elizabeth Pastor, (e) failure to adequately cross-examine
Dr. Haber, (f) failure to call the Slatterys, (g) failure to rebut
battered spouse evidence, (h) failure to present the “Abbott Avenue”
defense, (i) failure to seek to move venue, (j) failure to object to
the prosecutor's inflammatory statements made in closing argument;
(2) ineffective assistance of counsel during the penalty phase,
including: (a) failure to present evidence of Gonzalez's involvement,
(b) improper use of mental health experts, (c) failure to present the
Abbott Avenue evidence, (d) failure to introduce Gonzalez's polygraph
results, (e) failure to object to constitutional error, (3) Cardona
was denied access to public records; (4) Cardona was incompetent at
the time of trial; (5) Cardona is insane to be executed; and (6)
Cardona is innocent of the death penalty.
preparation for using Gonzalez as a State's witness, State
investigators had Gonzalez submit to a polygraph examination conducted
by George and Brian Slattery. Although these statements were not
used in the State's case, defense counsel was able to use these
statements to impeach Gonzalez to the extent they contradicted her
8. In its
order, the trial court failed to provide a basis for its ruling on the
claim as to the proffer letter. Because we conclude that a Brady
violation occurred by the State's failure to disclose the typed
criminal investigation reports, we do not reach the issue as to
whether the nondisclosure of the proffer letter also constituted a
medical examiner's testimony that Lazaro's death cannot be attributed
to any particular instance of abuse does not render evidence that
Gonzalez may have delivered the fatal blow meaningless. First, it
appears that the medical examiner, Dr. Hyma, originally advised that
“the cause of death was from trauma to the head further being a
massive ceribal [sic] Hematoma to the front left lobe extending to the
top of the skull.” Second, one of the State's themes was that
Cardona inflicted all the abuse in the couple of months before
Lazaro's death, including the fatal blow by the baseball bat.
State introduced testimony to show that Gonzalez had a dependent
personality. However, one of the areas in which Cardona now claims
her trial attorneys were deficient was in failing to question this
assumption through cross-examination involving prior acts of
misconduct. Cardona points to police reports filed before Gonzalez
met Cardona documenting assault and battery charges. In one such
report, Gonzalez was charged with “attacking and striking” her mother.
In another, she was charged with aggravated assault involving a
prior female lover. Finally, in an incident three months before she
met Cardona, she was again arrested for battery on another female
companion when she “got aggravated and started beating [victim] with
hands and striking [victim's] head on floor.” Because of our
resolution on the Brady issue, we do not reach the question of trial
counsel's ineffectiveness as to this issue.
ANSTEAD, C.J., and SHAW, PARIENTE, and LEWIS, JJ.,
concur.WELLS, J., dissents with an opinion, in which HARDING and
QUINCE, JJ., concur.HARDING and QUINCE, JJ., concur.