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JOEL LEBRON vs. STATE OF FLORIDA
Case Number: SC13-442
Court: Supreme Court of Florida
Description: On Saturday, April 27, 2002, Ana Maria Angel and Nelson Portobanco, both
high school students, decided to go for a walk on the beach in Miami Beach after a
dinner date. After walking along the beach for a while, the couple decided to
return to their vehicle. By this time, Lebron and his four codefendants (Cesar
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
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Mena, Victor Caraballo, Hector Caraballo, and Jesus Roman) had arrived in an
extended cab truck and parked. As Angel and Portobanco left the beach, they were
approached by Lebron (who identified himself as Diablo to the couple) and another
codefendant and forced at gunpoint to get into the truck.
Once in the truck, Angel and Portobanco were forced to turn over their
property including wallets, PIN numbers, cell phones, and jewelry. Lebron and the
codefendants used Angel’s ATM card to try to withdraw money from a nearby
cash machine. Following this attempt, Portobanco’s cell phone was used to call
codefendant Hector Caraballo’s number in the Orlando area.
During the abduction, Portobanco was ordered to kiss Angel, and when he
refused, the men punched him in the head until he did so. Then, the men
demanded and received Angel’s underwear and forced Portobanco onto the
floorboard. Thereafter, Lebron and other codefendants took turns orally, vaginally,
and anally raping Angel as the driver proceeded northbound on I-95.
Eventually, the driver pulled over to the side of I-95, and Lebron and one of
the codefendants ordered Portobanco out of the vehicle. Portobanco was walked
over to the side of the highway near the barrier wall, where he was then stabbed
repeatedly in the face, neck, and back. He was also kicked repeatedly. Portobanco
laid motionless on the ground and pretended to be dead until the stabbings and
beatings stopped. Lebron and the codefendant went back to the truck, leaving
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Portobanco on the side of the road. Once Lebron and the codefendants drove
away, Portobanco was able to walk back to the roadway and stop a passing
motorist who reported the crime.
Lebron and his codefendants continued to drive north with Angel in the
truck until they reached Palm Beach County, where they once again pulled over to
the side of the road. Lebron and another codefendant took Angel out of the vehicle
and walked her to the side of a roadway behind a wall concealed from view. Angel
was forced to kneel down, where Lebron shot her in the head.
Lebron and his codefendants then drove back to Orlando, where the group
stopped so some of the members could buy crack cocaine before dropping two of
the codefendants off at an apartment complex.
In the early morning hours of Sunday, April 28, 2002, law enforcement
officers interviewed Portobanco in the hospital and learned that the number dialed
on Portobanco’s cell phone was linked to codefendant Hector Caraballo’s
apartment in Orlando. Officers, along with FBI agents, went to the leasing office
of the apartment looking for Hector. The leasing agent informed them that she did
not know of a Hector Caraballo but that Victor Caraballo, another one of the
codefendants, had leased an apartment there and moved out while being evicted.
The leasing agent gave officers permission to search the apartment and provided
them with the keys. Once inside the apartment, the officers found Victor as well as
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Angel’s ATM card, driver’s license, purse, cell phone, and wallet. Portobanco’s
wallet was also discovered in the apartment. In searching the dumpster near the
apartment, the police located Angel’s shoes.
Thereafter, two law enforcement officers proceeded to a different apartment
complex to look for the truck and a red Honda associated with the crimes. There
the police encountered Cesar Mena, who was taken to Florida Department of Law
Enforcement (FDLE) headquarters.
During this time, officers identified Jesus Roman and Lebron as additional
suspects. Officers located Roman and Lebron at another apartment complex.
Lebron was standing in a breezeway with a duffle bag and shopping bags next to
him, which were impounded. In one of the bags, a pair of tan boots that appeared
to have blood on them was found. These boots belonged to Lebron.
Lebron was arrested on Monday, April 29, 2002, at around 1 a.m. He was
not Mirandized when arrested, but officers collected his clothing and glasses to
preserve trace evidence. Lebron was then clothed in a gown, handcuffed, and
placed in an unmarked vehicle. An officer drove Lebron to the FDLE Regional
Center in Orlando.
Once at the FDLE Regional Center, Lebron was placed unhandcuffed in a
room with law enforcement officers while other officers went to locate a tape
recorder for the interview. However, before Miranda warnings were administered,
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Lebron admitted that he shot Angel and stabbed Portobanco. Then, after Miranda
warnings were administered and after Lebron waived his Miranda rights, Lebron
gave a detailed confession to the murder and sexual assault of Angel and the
attempted murder of Portobanco.
Angel’s body was found on the shoulder of I-95 behind a thicket of palm
trees next to a retaining wall. Her hands were clasped together with their fingers
interlaced. She was barefoot and had a number of abrasions on her face and an
abrasion on her right leg, which the medical examiner testified were injuries that
occurred close to the time of her death. Additionally, officers returned to Mena’s
apartment, obtained consent, and searched the apartment. Officers located two
knives in a closet at the apartment. Officers also found a gun, which a ballistics
expert testified was the weapon that killed Angel.
During the guilt phase, law enforcement officers testified regarding Lebron’s
post-Miranda confession, and the jury heard Portobanco’s testimony. Furthermore,
a fingerprint examiner testified that there was a fingerprint matching Lebron’s
found on the mirror of the truck. A forensic biologist and DNA analyst testified
that he conducted serological testing on the truck’s back seat cover, the boots, and
the vaginal and anal swabs from Angel’s rape kit and found semen on the seat
cover and swabs and blood on the boots. DNA testing revealed a mixture of DNA
on the seat cover that was consistent with the DNA of Angel, Lebron, and the
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Caraballos, DNA consistent with Lebron on the vaginal swab and anal swab, and
DNA consistent with Portobanco on the boots.
After the guilt phase, the jury found Lebron guilty of (1) first-degree murder
of Ana Angel; (2) attempted first-degree murder of Nelson Portobanco; (3) armed
kidnapping of Ana Angel; (4) armed kidnapping of Nelson Portobanco; (5) armed
robbery of Ana Angel; (6) armed robbery of Nelson Portobanco; and (7) armed
sexual battery of Ana Angel. And after the penalty phase, the jury voted 9 to 3 to
recommend a sentence of death. The trial judge followed the jury’s
recommendation, finding 6 aggravators and listing numerous mitigating facts.
GUILT PHASE ISSUES ON APPEAL
Before this Court, Lebron argues: (1) his post-Miranda2 statement
was inadmissible; (2) the trial court erred in denying his motion for mistrial based
on Agent Hernandez’s statement during testimony; (3) the trial court erred in
denying his motion for mistrial based on the State’s comment during opening
statements; (4) the trial court erred in denying his motion for mistrial based on the
presence of the victim’s mother in the courtroom; (5) the trial court erred in
excluding quantitative electroence-phalography (QEEG) evidence under Frye;3 (6)
2. Miranda v. Arizona, 384 U.S. 436 (1966).
3. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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the trial court erroneously instructed the jury in such a way as to deprive it of its
pardon power; and (7) the trial court erred in denying his motion for mistrial based
on the State’s demonstration with the handgun during its closing argument. None
of these issues warrants relief. 4 We also conclude that the evidence is sufficient to
support Lebron’s first-degree murder conviction.
1. Post-Miranda Statement
First, Lebron argues that his pre-Miranda statement rendered his post
Miranda statement inadmissible and that he did not voluntarily waive his Miranda
rights. However, because officers did not engage in a deliberate two-step
interrogation strategy calculated to undermine the Miranda warnings and because
Lebron was fully informed of and waived his rights, we disagree.
As the lower court explained,
[Lebron] was located by law enforcement officers in Orlando between 1:00 and 2:00 a.m. on April 29, 2002. [Lebron] was transported to the Orlando headquarters of the Florida Department of Law Enforcement (“FDLE”) prior to 2:40 a.m. Upon arrival at the FDLE headquarters, [Lebron] was seated in the FDLE cafeteria with an FDLE agent. The agent was aware that no Miranda warnings had yet been administered. Other agents were looking for a tape recorder so that [Lebron’s] interview could be recorded if [Lebron] agreed to speak with them.
4. Because we are remanding for a new penalty phase pursuant to Hurst, Lebron’s other penalty phase claims are moot and are, therefore, not addressed. Additionally, because his individual guilt phase claims do not warrant relief, his cumulative error claim fails. See Johnson v. State, 104 So. 3d 1010, 1029 (Fla. 2012).
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The agent initially said nothing to [Lebron]. After several minutes, [Lebron’s] demeanor changed and he began to cry. The agent said, “I hope you know what kind of trouble you are in.” [Lebron] replied, “Yes, I know. I killed her.” He said that he told her to get down on her knees and that the gun did not go off until the third time he pulled the trigger. After [Lebron] said this, the agent left the room to report this information to other agents because up until that moment, the law enforcement agencies had hoped that Ms. Angel was still alive. [Lebron] said nothing further at that time and was not asked any questions. At 3:06 a.m. the officers had located a tape recorder and began administration of Miranda rights. [Lebron] signed the waiver form at 3:15 a.m. [Lebron] gave a detailed confession which included the abduction of both victims, the theft of the victims’ jewelry, credit cards, bank cards, and property, the sexual assault and murder of Ms. Angel, and the attempted murder of Mr. Portobanco.
State v. Lebron, 979 So. 2d 1093, 1094 (Fla. 3d DCA 2008).
“Both the United States and Florida Constitutions provide that persons shall
not be ‘compelled’ to be witnesses against themselves in any criminal matter.”
Ross v. State, 45 So. 3d 403, 412 (Fla. 2010). “To protect the right against self
incrimination, the [United States] Supreme Court required that any individual held
for interrogation must be clearly informed as to his or her rights, including the
‘right to remain silent, that any statement he does make may be used as evidence
against him, and . . . [the] right to the presence of an attorney, either retained or
appointed.’ ” Id. at 413 (quoting Miranda, 384 U.S. at 444). “The defendant may
waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently.” Miranda, 384 U.S. at 444.
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In Oregon v. Elstad, 470 U.S. 298 (1985), the United States Supreme Court
addressed a defendant’s statement that was made after he waived his Miranda
rights but where the defendant had previously made an incriminating statement
before the administration of Miranda warnings. The Court held that the post
warning statement was admissible, stating:
[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.
Id. at 314; see also Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997) (“Shortly
after confessing in his holding cell, Davis gave a taped statement in which he
voluntarily gave the same information contained in his prior statement. . . . This
[second] statement was clearly admissible because Davis was fully informed of
(and waived) his Miranda rights before the start of the taping session.” (citing
Elstad, 470 U.S. 298)); Ramirez v. State, 739 So. 2d 568, 574-76 (Fla. 1999)
(applying Elstad and explaining that whether a second, postwarning statement was
voluntary requires a review of the totality of the circumstances).
Then, in Missouri v. Seibert, 542 U.S. 600 (2004), the United States
Supreme Court held that a second, warned statement was inadmissible where law
enforcement officers intentionally and thoroughly questioned the defendant
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without administering Miranda in order to elicit an unwarned statement that was
then used to elicit the second, warned statement. The plurality opinion in Seibert,
542 U.S. at 611-12, stated the following:
The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?
The plurality listed the following “relevant facts that bear on whether Miranda
warnings delivered midstream could be effective enough to accomplish their
the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.
Id. at 615. Justice Kennedy, who provided the necessary fifth vote in Seibert,
explained the following in his concurrence:
The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the
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Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.
Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment) (citations
omitted); see also Ross, 45 So. 3d at 424 (considering whether law enforcement
employed a deliberate two-step interrogation strategy, “whether the police
minimized and downplayed the significance of the Miranda rights once they were
given,” as well as “the circumstances surrounding both the warned and unwarned
statements including ‘the completeness and detail of the questions and answers in
the first round of interrogation, the overlapping content of the two statements, the
timing and setting of the first and second [interrogations], the continuity of police
personnel, and the degree to which the interrogator’s questions treated the second
round as continuous with the first’ ” when determining the admissibility of a
second, postwarning statement (quoting Seibert, 542 U.S. at 615)).
In this case, the evidence demonstrates that law enforcement did not employ
a deliberate two-step interrogation strategy calculated to undermine the
effectiveness of Miranda warnings. There was only a single statement of “I hope
you know what kind of trouble you are in” by the agent with Lebron responding
that he had shot Angel and stabbed Portobanco. There was no thorough
prewarning interrogation like the one described in Seibert that was then used to
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elicit a repeated confession after Miranda was administered. Cf. Seibert, 542 U.S.
at 605, 616 (explaining that the defendant in Seibert was questioned for 30 to 40
minutes before Miranda was administered and that the pre-Miranda questioning
“was systematic, exhaustive and managed with psychological skill[, and when] the
police were finished there was little, if anything, of incriminating potential left
unsaid” and that the post-Miranda questioning “was fostered by references back to
the confession already given”); see also Rhode Island v. Innis, 446 U.S. 291, 300
(1980) (“[T]he special procedural safeguards outlined in Miranda are required not
where a suspect is simply taken into custody, but rather where a suspect in custody
is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda
opinion, must reflect a measure of compulsion above and beyond that inherent in
Once the agent informed others that Angel was in fact deceased, Miranda
rights were administered, and Lebron knowingly, intelligently, and voluntarily
waived his rights. Specifically, Agent Hidalgo presented Lebron with a Miranda
waiver form and read each of the rights to Lebron. Lebron indicated to Agent
Hidalgo that he understood his rights. Lebron then agreed to speak with the
officers without an attorney, and Lebron signed the waiver form. Officers also
testified that Lebron did not appear intoxicated and that he appeared to understand
what was occurring. No threats or promises were made.
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Moreover, while Lebron’s prewarning statement indicated that he had killed
Angel and attempted to kill Portobanco, it did not include the details of his role in
the kidnapping, robbery, and sexual battery that he included in his postwarning
statement. There is no evidence that law enforcement minimized the significance
of the Miranda warnings once they were given. The first statement was not used
by law enforcement in eliciting the postwarning statement. Law enforcement did
not refer to the first statement when conducting the post-Miranda interview.
Instead, law enforcement began questioning Lebron about what had occurred
beginning with when Lebron first met with the codefendants. Also, Lebron’s
initial confession in response to the agent’s single statement was made at
approximately 2:42 a.m., and the officers did not question him until after he
executed a written waiver at 3:15 a.m.
Accordingly, because officers did not engage in a deliberate two-step
interrogation strategy and because Lebron knowingly, intelligently, and voluntarily
waived his Miranda rights before making his second statement, his postwarning
statement was admissible.
2. Agent Hernandez’s Testimony
Next, Lebron argues that the trial court erred in denying his motion for
mistrial based on Agent Hernandez’s testimony. An order granting a mistrial is
required “only when the error upon which it rests is so prejudicial as to vitiate the
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entire trial.” Smith v. State, 866 So. 2d 51, 58 (Fla. 2004). In reviewing a trial
court’s ruling on a motion for mistrial, this Court employs an abuse-of-discretion
standard of review. Id. at 58-59.
Lebron argues that he was unfairly prejudiced by Agent Hernandez’s
testimony that he was able to recall Lebron’s confession because this was the worst
case he had ever seen. However, the actual testimony during trial was the
In my twenty-five years as a law enforcement officer, I never heard a confession like that when he talked to – to the agent about the – how he and the other rape and did whatever.
This testimony was provided during the State’s case in chief following defense
counsel’s statement in opening argument that he intended to challenge the
reliability of testimony regarding Lebron’s confession after it was learned by the
officers that it had not been recorded.
This Court has long recognized that a party presenting a witness may present
evidence on direct examination as “anticipatory rehabilitation.” Lawhorne v. State,
500 So. 2d 519, 520 (Fla. 1986); Bell v. State, 491 So. 2d 537, 538 (Fla. 1986).
Moreover, when a prior law enforcement witness was under cross-examination
earlier in the trial, defense counsel asked extensive questions regarding the
detective’s ability to remember the details of Lebron’s confession. When the trial
court indicated that it allowed Agent Hernandez’s testimony because it had
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anticipated defense counsel’s cross-examination on the issue, counsel did not
suggest that it did not intend to pursue the line of questioning.
Thus, the trial court did not abuse its discretion in allowing Agent
Hernandez to testify as to why he was able to remember the confession.
3. Opening Argument
Lebron claims that the trial court erred in denying his motion for mistrial
based on the State’s comment during opening argument. “This Court reviews a
trial court’s ruling on a motion for mistrial under an abuse-of-discretion standard
of review.” Smith, 866 So. 2d at 58-59.
During its opening statement, the State discussed the facts of the crime, how
the investigation of the use of the cell phones stolen from the victims led them to
Hector’s apartment, and how that led to the discovery of Victor and the victims’
property in and around the apartment. The prosecutor then stated:
So at that point, the police had one down, but they had four more to go. Now, as this investigation was unfolding, the police are fielding information from a lot of different sources. And one investigative lead that they got took them to another apartment complex. . . . And Special Agent King, the one that had busted in through Victor Caraballo’s evicted apartment, goes there along with an FBI agent, because the FBI is also involved in this case. And when they go to that apartment complex, they encounter an individual by the name of Cesar Mena. He’s the one that I told you was driving the truck the whole time. Cesar Mena is also taken into custody. And at that point, they’ve got two down, and there are three more to go.
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The police continue fielding investigative leads. And now they know that they are looking for two individuals by the names of Jesus Roman and Joel Lebron.
Lebron asserts that this comment violated Postell v. State, 398 So. 2d 851,
854 (Fla. 3d DCA 1981), in which the court held that where “the inescapable
inference from the testimony is that a nontestifying witness has furnished the
police with evidence of the defendant’s guilt, the testimony is hearsay, and the
defendant’s right of confrontation is defeated.” (Footnote omitted.) However, as
the State notes, this Court has also held that there is no violation where a police
officer testifies regarding steps taken during an investigation without identifying
anyone the police spoke to or alluding to the conversations that took place. See
Evans v. State, 808 So. 2d 92, 103-04 (Fla. 2001). Additionally, this Court has
recognized that an officer can testify about the actions taken based on a tip of
information received without describing the tip, the information, or its source. See
State v. Baird, 572 So. 2d 904 (Fla. 1990).
Here, the statement made by the prosecutor during opening statement did not
create an “inescapable inference” that anyone who would not be testifying
provided the evidence of Lebron’s guilt. Instead, the statement that the police
knew to look for Lebron based on information received is similar to testimony
regarding the police acting based on information received, which this Court has
stated can be proper. See Baird, 572 So. 2d at 908 (“[W]hen the only relevance of
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such a statement is to show a logical sequence of events leading up to an arrest, the
better practice is to allow the officer to state that he acted upon a ‘tip’ or
‘information received.’ without going into the details of the accusatory
information.”). Furthermore, in mentioning that the police had received leads from
numerous sources, the State weakened any possible inference that this information
had been received by a nontestifying witness.
Accordingly, the trial court did not abuse its discretion in denying the
motion for mistrial.
4. Angel’s Mother
Additionally, Lebron asserts that the trial court erred in denying his motion
for mistrial based on the presence of Margarita Osorio, Angel’s mother, in the
courtroom. Particularly, Lebron argues that he was prejudiced by the emotional
reactions of Angel’s mother when the State gestured toward her during closing
arguments. We disagree.
This Court reviews a trial court’s ruling on whether a witness can be present
in the courtroom under an abuse of discretion standard. See Gore v. State, 599 So.
2d 978, 986 (Fla. 1992). And the next of kin of homicide victims have a
constitutional right to be present at all stages of criminal proceedings. See art. I, §
16(b), Fla. Const. This right has been codified in section 90.616(2)(d), Florida
Statutes (2017), which provides that the victim’s next of kin are excluded from the
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rule prohibiting a witness from hearing the testimony of other witnesses unless
there is a showing that the presence of the next of kin will be prejudicial. In
determining whether prejudice has been shown, this Court considers whether the
relative testified regarding a material issue and the witness’s presence provided an
opportunity to change his or her testimony and whether the relative engaged in
overt emotional outbursts during the proceedings. See Beasley v. State, 774 So. 2d
649, 669 (Fla. 2000).
During Lebron’s first attempt to have Osorio excluded from the courtroom
pursuant to section 90.616, Florida Statutes (2012), he did not argue that her
presence in the courtroom would be prejudicial because she would testify to a
material issue or had displayed an emotional outburst. Lebron actually conceded
that Osorio’s testimony would be limited to issues that were not in genuine dispute.
During trial, Osorio testified regarding the clothing Angel was wearing on the
night of the murder, that she saw Angel leave with Portobanco, and that she saw
Portobanco in the hospital after the crimes. Lebron also never made a
contemporaneous objection to any show of emotion from Osorio. Instead, the
record reflects that the trial court noted that Osorio had been very composed.
Lebron even acknowledged that Osorio had not engaged in any emotional
outbursts that disrupted the proceedings and only claimed to have seen her crying.
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Accordingly, Lebron fails to demonstrate the prejudice necessary to
overcome Osorio’s constitutional and statutory right to be present. We affirm the
denial of the motion for mistrial based on her presence.
5. QEEG Evidence
Lebron claims that the trial court erred in excluding QEEG evidence to
support Lebron’s argument that he suffered from a traumatic brain injury.
However, we affirm the trial court’s exclusion of this evidence.
The standard of review of a Frye issue is de novo. See Hadden v. State, 690
So. 2d 573, 579 (Fla. 1997). Under Frye, “[t]he proponent of the evidence bears
the burden of establishing by a preponderance of the evidence the general
acceptance of the underlying scientific principles and methodology.” Castillo v.
E.I. Du Pont de Nemours & Co., 854 So. 2d 1264, 1268 (Fla. 2003).
At the Frye hearing, Dr. William Lambos, a neuropsychologist, testified
about peer-reviewed studies that utilize QEEG as having been used in comparing
individuals to normative databases. He testified that the software used,
NeuroGuide, had been used since 2005. He went on to state that the software has
been registered with the federal Food and Drug Administration, and this
registration establishes the appropriateness of the NeuroGuide analysis “to be used
by qualified medical or clinical professionals for the statistical evaluation of human
electroencephalogram or EEG.” Dr. Lambos also identified a 400-page abstract of
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795 peer-reviewed journal articles on LORETA, another software program utilized
in the QEEG study. Several of those articles, between 130 and 150 of which Dr.
Lambos read, supported his subfield which is “[t]he use of QEEG to identify
disregulations of the brain that impact behavioral functioning or behavioral health
Lebron contends that the weight of this evidence at the Frye hearing
established the general acceptance in the scientific community of the QEEG study
protocol. However, while Dr. Lambos identified one article regarding the use of
normative databases in analyzing QEEG and identified numerous abstracts of
articles concerning LORETA, he admitted that he had read 20% of the articles
whose abstracts he identified and did not claim that any of them concerned using
QEEG as a means of diagnosing brain damage. Further, other evidence at the
hearing showed that while there were numerous articles that had been published
regarding QEEG use, most of them concerned uses other than diagnosing brain
damage. Additionally, while Lebron argues that the fact a QEEG has been
registered with the FDA shows that it is a generally accepted means of diagnosing
brain damage, Dr. Lambos acknowledged that such registration did not suggest
approval of QEEG.
Dr. Lambos also admitted that he had generated $1 million in gross income
by conducting QEEG tests and that he had begun using QEEG in forensic work to
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increase its acceptance and generate more income from it. Moreover, while Dr.
Lambos admitted that his results were based on using information from a
database, he testified that did not know anything regarding the creation of the
Two other witnesses that testified at the hearing, and stated that QEEG was
not generally accepted as a means of diagnosing brain damage. Dr. Lambos also
admitted that it was not proper to diagnose brain damage based on QEEG data.
Further, there was testimony that pictures produced by LORETA from QEEG
data were misleading because they colored large areas as if the entire area of a
brain was damaged even though the data only supported a conclusion that there
was damage somewhere in that area.
Given the above, Lebron failed to carry his burden of proving that QEEG
evidence was a reliable and generally accepted means of diagnosing brain
damage. Dr. Lambos, who testified that he conducted QEEG tests to generate
income, is not the type of impartial expert needed to show the general acceptance
of QEEG. See generally Ramirez v. State, 810 So. 2d 836, 851 (Fla. 2001).
Additionally, Dr. Lambos did not know anything about the creation of the
database. See Murray v. State, 692 So. 2d 157, 163-64 (Fla. 1997) (evidence not
admissible when based on testimony from an expert who has no knowledge of
how the database was assembled and used).
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Accordingly, testimony based on the use of the database was properly
6. Pardon Power
Lebron also asserts that one of the trial court’s instructions deprived the jury
of its pardon power. In support of his argument, Lebron relies on the hypothetical
set forth by the trial judge during voir dire. During voir dire, the judge presented
an example of a mother of a hungry child who “goes to Publix . . . takes a loaf of
bread off of the shelf and she walks out of the store without paying for it.” The
court also informed the jury that it could not return a not guilty verdict if the State
had proven its case beyond a reasonable doubt, no matter what the circumstances.
The jury instructions also included the following statement:
There are some general rules that apply to your discussions. You must follow these rules in order to come to a lawful verdict. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case.
These instructions, according to Lebron, deprived the jury of its pardon power.
This issue is unpreserved and meritless. First, Lebron did not object to the
trial court’s instructions during voir dire. To preserve an issue, a defendant must
make a contemporaneous objection on the specific grounds raised on appeal. See
F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). As the trial court provided its
hypothetical of the mother and hungry child, Lebron did not object. Additionally,
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when Lebron objected while the trial court discussed a veniremember’s answer,
Lebron only raised a general objection without stating the grounds. After the trial
court had completed all questioning, taken a recess, and discussed other matters
with the State, Lebron informed the trial court that the basis of the objection had
been denial of the jury’s pardon power. The trial court did not rule on the issue.
Instead, the court asked Lebron for legal support of the argument, to which Lebron
provided none. Thus, this issue is not preserved for review. See Rose v. State, 787
So. 2d 786, 797 (Fla. 2001) (“As a general rule, the failure of a party to get a timely
ruling by a trial court constitutes a waiver of the matter for appellate purposes.”).
Further, it is not error to instruct the jury to follow the law. Therefore, the
trial court did not err in instructing the jury that it had to follow the law in
determining Lebron’s guilt.
Lebron further asserts that the trial court erred in denying his motion for
mistrial based on the State’s use of the handgun during closing statements. Lebron
argues that the State made an improper golden rule argument when it dry fired the
handgun used during the crime three times during closing argument. However, we
affirm the trial court’s denial of the motion for mistrial.5
5. As previously mentioned, “[t]his Court reviews a trial court’s ruling on a motion for mistrial under an abuse-of-discretion standard of review.” Smith, 866 So. 2d at 58-59.
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This Court prohibits golden rule arguments, which “invite the jurors to place
themselves in the victims’ position and ‘imagine the victim’s final pain, terror, and
defenselessness.’ ” Merck v. State, 975 So. 2d 1054, 1062 (Fla. 2007) (quoting
Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985)). However, this Court has held
that it is not improper for a trial court to allow the State to demonstrate the
circumstances of a murder as long as the demonstration is an accurate and
reasonable reproduction of what occurred based on the evidence. See Brooks v.
State, 175 So. 3d 204, 239-40 (Fla. 2015).
This case is similar to Bailey v. State, 998 So. 2d 545, 555 (Fla. 2008), in
which the prosecutor made the following statement during closing arguments:
I ask that as you sit down in the jury room to deliberate you do two things before you reach the time to take a vote. I want you to all just to put your finger 18 to 24 inches away from each other’s face and see how close you are when your eyes are meeting, as his met those eyes on an Easter night in our community and in 18 to 24 inches away firing once, twice, and three times.
There, this Court did not find the comments improper, instead finding that they
were “designed to help the jury to visualize the distance between the gun and the
Likewise, it appears that the State, in its use of the handgun, attempted to
describe what occurred in order to allow the jury to visualize the evidence. The
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demonstration was also an accurate and reasonable demonstration of the events
that occurred based on Lebron’s confession. Therefore, the comments and
demonstration were not improper.
Accordingly, the trial court did not abuse its discretion in denying the
motion for mistrial.
In death penalty cases, regardless of whether the appellant raises the issue,
this Court conducts an independent review to determine whether sufficient
evidence exists to support a first-degree murder conviction. See Phillips v. State,
39 So. 3d 296, 308 (Fla. 2010). The evidence in a capital case is judged to be
sufficient when it is both competent and substantial. Id. In conducting its review,
this Court “view[s] the evidence in the light most favorable to the State to
determine whether a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So. 2d
655, 674 (Fla. 2006).
In this case, Lebron was charged with, and the jury was instructed on, both
first-degree premeditated murder and first-degree felony murder. The jury then
returned a general verdict of guilty of first-degree murder. “A general guilty
verdict rendered by a jury instructed on both first-degree murder alternatives may
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be upheld on appeal where the evidence is sufficient to establish either felony
murder or premeditation.” Crain v. State, 894 So. 2d 59, 73 (Fla. 2004).
There was competent and substantial evidence in support of both forms of
first-degree murder. First, Lebron provided a detailed description of the murder,
kidnapping, robbery, and sexual battery in his confession. Lebron described how
he and the other codefendants were in the area that night looking for people to rob
when they saw Angel and Portobanco walking up from the beach. Lebron
explained that he and another codefendant forced them into the truck at gunpoint,
stole their belongings, and forced Angel to engage in various sex acts against her
will. Lebron then went on to confess that he ordered Angel to get on her knees,
pointed the gun at her head, and fired the gun twice before it went off the third
time. He also confessed that he shot Angel because he thought she would be able
to identify him.
Lebron’s confession was corroborated by witness testimony and physical
evidence. Portobanco testified that he and Angel were kidnapped and robbed at
gunpoint and that Angel was raped. The medical examiner testified that Angel
died from a gunshot wound to the head and that the wound was consistent with the
gun being less than 12 inches from the head when fired. The crime laboratory
manager tested the projectiles recovered from Angel’s body and compared them to
the bullets shot from the subject pistol. He testified that the bullet that killed Angel
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was fired from the handgun found in the codefendants’ possession. Lebron’s
fingerprints were removed from the truck involved in the crime and his DNA was
found on the backseat. Further, Lebron’s DNA was found on rectal and vaginal
swabs of the victim. Lebron’s boots also had Portobanco’s blood on them.
Accordingly, the evidence presented in this case was sufficient to support a
conviction for both first-degree premeditated murder and first-degree felony
Finally, we consider whether Lebron is entitled to relief after the United
States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016).
Because the jury recommended the death penalty by a vote of nine to three, we
conclude that Lebron’s death sentences violates Hurst. See Kopsho v. State, 209
So. 3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error was
harmless beyond a reasonable doubt:
The harmless error test, as set forth in Chapman[v. California, 386 U.S. 18 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.
Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So. 2d
1129, 1138 (Fla. 1986)), cert. denied, 137 S. Ct. 2161 (2017).
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Because the jury in this case recommended death by a vote of 9 to 3, “we
cannot determine that the jury unanimously found that the aggravators outweighed
the mitigation.” Kopsho, 209 So. 3d at 570. “We can only determine that the jury
did not unanimously recommend a sentence of death.” Id. Therefore, because we
cannot say that there is no possibility that the error did not contribute to the
sentence, the error in Lebron’s sentencing was not harmless beyond a reasonable
Accordingly, we vacate the death sentence and remand for a new penalty
phase. See Hurst, 202 So. 3d at 69.
Outcome: For the reasons expressed above, we affirm Lebron’s convictions, but we
vacate his death sentence and remand for a new penalty phase.