HIS SENTENCE IS DISPROPORTIONATE IN LIGHT OF NEWLY DISCOVERED EVIDENCE - Angel Diaz

MR. DIAZ IS ENTITLED TO A LIFE SENTENCE AS HIS SENTENCE IS DISPROPORTIONATE IN LIGHT OF NEWLY DISCOVERED EVIDENCE.

Since his direct appeal, Mr. Diaz has challenged the proportionality review conducted by this court. In his initial petition for writ of habeas corpus to this Court, Mr. Diaz argued that appellate counsel was ineffective for failing to bring to light the facts in the record showing that Mr. Diaz was not the triggerman. Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999). Although presenting a claim that Mr. Diaz's death sentence was disproportionate to that of co-defendant Angel Toro, who received a plea to second degree murder and a life sentence, direct appeal counsel never pointed this Court to the compelling facts in the record showing the injustice of Mr. Diaz's death sentence in comparison to Toro's life sentence. Mr. Diaz again raised the issue of proportionality in his federal habeas petition.

Without these facts, this Court rejected the proportionality argument although noting that a co-defendant's life sentence is a relevant proportionality consideration if the co-defendant is the more culpable actor. Diaz v. State, 513 So. 2d 1045, 1049 (Fla. 1989). It was clear from the

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direct appeal opinion, in which this Court stated "One of three Spanish-speaking men shot and killed the bar manager during the December 29, 1979, holdup of a Miami bar" that the Court believed Mr. Diaz could have been the shooter. Id. at 1046. In a special concurrence, Justice Barkett noted, however, "if one believed that this defendant was not the actual triggerman, the proportionality argument would have merit." Id. The compelling facts which were not presented by direct appeal counsel, coupled with newly discovered evidence relating to the only witness who testified that Mr. Diaz was the shooter, compel this Court to revisit its previous proportionality review.

The only witness testifying for the state which claimed Mr. Diaz was the shooter was a jailhouse snitch named Ralph Gajus. Mr. Gajus testified that he was in the Dade County Jail at the same time as Mr. Diaz and their cells were located across from each other. During his testimony, Mr. Gajus indicated that Mr. Diaz was able to speak English and that Mr. Gajus "understand(s) very well." (R. 1115). Mr. Gajus went so far as to say that Mr. Diaz spoke English almost as well as himself and the prosecutor (Id.).