NICHOLAS AGATHEAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2010-02-24
No. 4D06-4870
MAY and CIKLIN, JJ., concur.
28 So. 3d 204 Florida District Court of Appeal, Fourth District (2010) Negative Treatment
Cited by 9 cases

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Synopsis

Nicholas Agatheas appeals his first-degree murder conviction, arguing that his trial counsel was ineffective for failing to object to the introduction of a .45 caliber revolver and other backpack contents that were not connected to the murder weapon (a .38 caliber gun). The Fourth District affirmed the conviction, holding that the evidence was relevant to corroborate the former girlfriend's testimony and that any erroneous admission of unconnected items was harmless.


Holding

The court affirmed the conviction, holding that the .45 caliber revolver, bandana, and latex gloves were relevant and admissible to corroborate the former girlfriend's credibility, as she had testified about the defendant's possessions and conduct. The admission of unconnected items (flashlight, batteries, lighter, screwdriver) was harmless error and did not undermine confidence in the outcome. Trial counsel was not ineffective for failing to object to relevant, admissible evidence.


Headnotes

[1] Evidence is admissible if it is relevant to an issue at trial, either independently or to corroborate other evidence, unless its probative value is outweighed by undue pr…

[2] Trial counsel is not ineffective for failing to object to evidence that is relevant and admissible.

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Key Quotes

“in ineffective assistance of counsel claims two requirements must be satisfied: (1) the claimant must identify a particular act or omission of the lawyer that is outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be shown to have affected the fairness and reliability of the proceeding so that confidence in the outcome is undermined.”

Establishes the two-prong test from Strickland v. Washington for evaluating ineffective assistance of counsel claims

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Facts & Procedural History

In 2006, Agatheas was arrested for shooting Thomas Villano eight times in the head and neck. The defendant's former girlfriend testified that weeks be…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
DAMOORGIAN, J.

ON MOTION FOR REHEARING AND REHEARING EN BANC

DAMOORGIAN, J.

Nicholas Agatheas filed a Motion for Rehearing and Rehearing En Banc. We deny appellant’s motions, withdraw our opinion of December 16, 2009, and substitute the following.

After being tried and convicted of first degree murder with a firearm, Nicholas Agatheas (“the defendant”) appeals. We affirm.

On September 20, 2006, the defendant was arrested for murdering Thomas Villa-*206no (“the victim”). The State’s theory at trial was that the defendant hated the victim and retaliated against the victim for allegedly raping one of the defendant’s friends. The State argued that, on the night of the murder, the defendant showed up at the victim’s house and fatally shot him eight times in the head and neck.

The defendant’s former girlfriend testified that weeks prior to the murder, she walked in on the defendant in her bedroom dressed in black clothes wearing a bandana on his face and holding a revolver-type gun in his hand. She described the defendant’s appearance as that of a “gangster.” When she started to laugh, he grew very serious and told her that this was the way he was now.'

On the day of the murder, the defendant and the former girlfriend fought, and the defendant made arrangements to stay at a friend’s house that night. The former girlfriend then went to work and did not return home until later that evening. Shortly after arriving home, she noticed that the backpack in which the defendant stored his gun was missing from her closet. She had not spoken to the defendant since their fight earlier that day. Several hours after retiring to bed that night, she was awoken by the defendant’s phone call. According to the former girlfriend, the defendant called her from a pay phone and asked her to contact his friend and arrange for his friend to pick him up. The former girlfriend agreed and made the call.

A few nights later, while the former girlfriend and the defendant were watching TV, a news story aired about the victim’s murder. At this time, the defendant bragged to the former girlfriend that he murdered the victim because the victim raped one of his friends. He also admitted to her that he took off his t-shirt and left it at the scene of the crime. After murdering the victim, he drove the victim’s car around listening to music very loudly before abandoning it.

During the investigation of the murder, the police recovered a black t-shirt with the defendant’s DNA in the front yard of the victim’s residence. The police also recovered the victim’s vehicle near the pay phone the defendant used to call his former girlfriend on the night of the murder. The radio in the recovered vehicle was set at a high volume. Although there was evidence connecting the defendant to the crime, he was not charged at that time. It was not until the former girlfriend came forward years later that there was sufficient evidence to charge the defendant. With the former girlfriend’s statement, the police arrested the defendant for the murder. At the time of the arrest, the defendant had in his possession a backpack, which contained, among other things, a .45 caliber revolver and latex gloves nestled inside another pair of gloves.

At trial, the State introduced the actual contents of the defendant’s backpack and photographs of the contents, which included the .45 caliber revolver, latex gloves nestled inside another pair of gloves, a flashlight, batteries, a lighter, a screwdriver, and a bandana. However, as established by uncontroverted expert testimony, the gun used to murder the victim was a “.38 caliber gun or a .38 class gun.” The defendant’s counsel did not object at trial to the introduction of this evidence.

On appeal, the defendant claims that his trial counsel was ineffective for failing to object to the introduction of the .45 caliber revolver and the other contents of his backpack, and that the facts giving rise to this claim are apparent on the face of the record. See Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002) (“[Ineffective assistance of counsel will only be addressed on direct appeal for the first time *207when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”). The defendant also argues that the introduction of the revolver was highly prejudicial and that it was fundamental error for the trial court to admit this evidence because the State failed to connect the revolver to the murder.

We first address the defendant’s ineffective assistance of counsel claim. An ineffective assistance of counsel claim is a mixed question of law and fact that is subject to de novo review. Bowman v. State, 748 So.2d 1082, 1083-84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida Supreme Court cited the U.S. Supreme Court’s ineffective assistance of counsel test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and noted the heavy burden a defendant faces in order to prevail on an ineffective assistance of counsel claim:

[I]n ineffective assistance of counsel claims two requirements must be satisfied: (1) the claimant must identify a particular act or omission of the lawyer that is outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be shown to have affected the fairness and reliability of the proceeding so that confidence in the outcome is undermined. As to the first prong, the defendant must establish that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. There is a strong presumption that trial counsel’s performance was not ineffective.

994 So.2d 1094, 1099 (Fla.2008) (citations and quotation marks omitted).

As to the first prong of the Strickland test, as cited in Pearce, the defendant argues that his trial counsel should have objected to the admissibility of the backpack contents because the State failed to show how the contents were linked to the murder, and the evidence suggested that the defendant had a propensity to engage in criminal activities. We disagree and conclude that this evidence was relevant to corroborate the former girlfriend’s testimony. See Czubak v. State, 570 So.2d 925, 928-29 (Fla.1990); Williams v. State, 834 So.2d 923, 926 (Fla. 3d DCA 2003), rev’d on other grounds, 863 So.2d 1189 (Fla.2003) (citing Allen v. State, 662 So.2d 323, 327 (Fla.1995)); Kirby v. State, 625 So.2d 51, 53 (Fla. 3d DCA 1993) (stating that a photograph is admissible if relevant to an issue at trial, either independently or to corroborate other evidence, unless the probative value is outweighed by undue prejudice). On several occasions throughout the trial, the defendant’s trial attorney attacked the former girlfriend’s credibility, arguing, among other things, that she fabricated the story after a private investigator leaked information to her. The .45 caliber revolver and bandana recovered from the defendant’s backpack corroborated her testimony regarding her observations around the time the crime was committed. The photographs of these items were, therefore, relevant to her credibility. We also conclude that the latex gloves and photographs of the gloves were relevant and admissible because latex gloves like the ones found in the defendant’s backpack were found along the path from the victim’s vehicle to the pay phone that the defendant used to contact the former girlfriend on the night of the murder. The defendant’s trial attorney was not ineffective for failing to object to evidence that we conclude was relevant and admissible.

Although we have not found, and the State has not identified, any evidence *208connecting the flashlight, batteries, lighter, and screwdriver to the murder, we conclude that the erroneous admission of these items did not undermine confidence in the outcome of this cause and that the admission of this evidence was harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Accordingly, we hold that the defendant has not stated a claim for ineffective assistance of counsel regarding the trial attorney’s failure to object to these items.

Having concluded that the .45 caliber revolver, bandana, and latex gloves, and photographs of these items were relevant and admissible, and that the admission of the other backpack contents was harmless error, we need not address the defendant’s claim that the admission of this evidence constitutes fundamental error.1

We find no merit to any of the other issues raised.

Affirmed.

MAY and CIKLIN, JJ., concur.


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Citator

Cited By

  • Agatheas v. State, 77 So. 3d 1232 (Fla. 2011)
    …PER CURIAM. Nicholas Agatheas seeks review of Agatheas v. State, 28 So. 3d 204 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal denied Agatheas’s claims of ineffective assistance of counsel and fundamental error with respect to the admission of a 45-caliber revolver. The Fourth District held that the trial cou…
    1 / 2
  • Ervin L. Evans v. State, 62 So. 3d 1203 (Fla. 4th DCA 2011)
    …to think of something” and that they “concocted” the story. Evans acknowledges that this argument was not preserved for review and, therefore, reversal is proper only if the prosecutor’s statements constituted fundamental error. Agatheas v. State, 28 So. 3d 204, 208 n. 1 (Fla. 4th DCA 2010). Fundamental error in closing argument is “error that ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error…
  • Agatheas v. State, 77 So. 3d 1290 (Fla. 4th DCA 2012)
    …DAMOORGIAN, J. We reconsider on remand our opinion in Agatheas v. State, 28 So. 3d 204 (Fla. 4th DCA 2010), which was quashed by the Florida Supreme Court in Agatheas v. State, 77 So. 3d 1232 (Fla.2011). Consistent with the supreme court’s holding that the admission of the 45-caliber revolver, photographs of the gun, bandana, and late…

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