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Lugo v. State2/20/2003
defendants. Delgado was unfortunately a crucial witness in the prosecution of the most culpable individuals in these crimes and his testimony was repeatedly corroborated by the physical evidence. His involvement in the Griga/Furton crimes pales in comparison with Lugo. His plea offer and sentence for that cooperation, given his lack of actual involvement in the murders, does not adversely affect the proportionality review of Lugo's sentence.
We agree with the trial judge's analysis of this aspect of the proportionality review. Lugo's reliance on Larzelere v. State, 676 So. 2d 394 (Fla. 1996), is unavailing. Moreover, Larzelere actually supports the conclusion that sentences of death are appropriate for Lugo. In Larzelere, we noted that disparate treatment of a co-defendant, including the imposition of the death penalty, is warranted when that co-defendant is a more culpable participant in the criminal activity. See id. at 407. The appellant in Larzelere presented an argument similar to Lugo's argument that he was not the "hands-on" killer. We nevertheless affirmed the death penalty, stating:
[The appellant's] participation was not relatively minor. Rather she instigated and was the mastermind of and was the dominant force behind the planning and execution of this murder and behind the involvement and actions of the co- participants before and after the murder. Her primary motive for the murder was financial gain, which motive was in her full control. Id.
In Lugo's case, record evidence reflects that he was a dominant force in the murders of Griga and Furton, and was motivated to a significant degree by pecuniary gain. The decision in Larzelere therefore counsels that sentences of death for Lugo are appropriate.
Lugo's case also bears similarities to other cases in which we have affirmed the imposition of the death penalty. In Knight v. State, 746 So. 2d 423 (Fla. 1998), the defendant was sentenced to death for two murders after the jury recommended sentences of death by votes of nine to three. The same five aggravators applicable to both murders in Lugo's case were also applicable to both murders in Knight: prior violent felony; during the commission of a kidnaping; avoiding or preventing a lawful arrest; pecuniary gain; and cold, calculated and premeditated (CCP). In both Knight and the instant case, no statutory mitigators were found to be applicable. Three non-statutory mitigators, more compelling than the ones found in Lugo's case, were applicable in Knight: the defendant was a victim of childhood abuse; he suffered from some degree of paranoia; and he was raised in poverty. By contrast, Lugo established no evidence of childhood abuse, mental health mitigation, or impoverished upbringing. Given the jury's eleven-to-one votes to recommend death sentences for Lugo, his less compelling non-statutory mitigators, and the existence of five aggravators that were identical to those found in Knight (along with the applicability of the HAC aggravator to the Furton murder), the decision in Knight further counsels that Lugo's sentences of death are proportional.
Constitutionality of Florida's Capital Sentencing Scheme
Lugo claims that Florida's capital sentencing scheme is unconstitutional. However, he does not rely on opinions which have received a majority of votes from members of an appellate court. We have previously rejected the claim that the death penalty system is unconstitutional as being arbitrary and capricious because it fails to limit the class of persons eligible for the death penalty. See Shere v. State, 579 So. 2d 86, 95 (Fla. 1991). Moreover, we have stated that "no federal or state courts have accepted argument that a prolonged
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