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INTRODUCTION
On Friday, January 16, 2004, at approximately 1:37
p.m., the Miami-Dade Police Department received a 911
telephone call stating that there was a burglary in process
at 14773 Southwest 58th Street. The caller, who spoke
Spanish, said that he lived across the street from the home
being burglarized, and that he had observed two (2) white
males jumping the fence and going into the back yard. Units
were dispatched at 1:39 p.m., from the Hammocks District with
Officer William Nelson assigned as the primary unit and
Officer Jorge Espinosa assigned as the back-up officer.
Officer Espinosa arrived first and, while checking the
exterior of the residence, discovered that a sliding glass
door in the rear of the house was open. Officer Espinosa
entered the residence and confronted two male burglars in the
master bedroom. One of them, later identified as Rolando
Llanes, jumped out of the bedroom window, while the other
man, later identified as Leonardo Barquin, allegedly pointed
a weapon at Officer Espinosa. Officer Espinosa then fired
two shots at Barquin, hitting him at least once. Barquin
then jumped out of the window and ran to climb the fence in
the backyard in an attempt to escape. Officer Espinosa
followed Barquin who allegedly pointed the weapon at the
officer at second time. Officer Espinosa responded by firing
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one more shot as Barquin went over the fence.
Barquin ran over to Southwest 57th Terrace, where
he collapsed and was subsequently apprehended by Officer
Espinosa. Barquin had been shot twice and was bleeding
profusely. He was airlifted to Jackson Memorial Hospital,
where he expired at 9:56 p.m. that night. Rolando Llanes
continued to flee for several blocks and was later
apprehended. Both Llanes and Barquin were in possession of
items taken in the burglary of the residence at 14773
Southwest 58th Street. Neither Barquin nor Llanes had a
weapon when they were arrested and no weapon was ever
recovered.
SWORN STATEMENT OF OFFICER JORGE ESPINOSA
On February 17, 2004, a month after the shooting
incident, Officer Espinosa stated the following:
On January 16, 2004, he was assigned to uniform
patrol in the Hammocks District and was working the 6:00
a.m., to 2:00 p.m. shift. He was in a marked unit on 147th
Avenue approaching Sunset Drive, when he received a call for
a burglary in process. He quickly arrived in the area of
58th Street; however, he was having trouble locating the
correct address. He saw an older Hispanic male in his front
yard on 58th Street. When Officer Espinosa pulled up to him
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to seek directions, the man said in Spanish "it is the pink
house". Officer Espinosa then drove his vehicle to the front
of the house (located at 14773 Southwest 58th Street), parked
the vehicle and walked up to the front door, which was
locked. He then saw that the gate leading to the backyard
was propped open. He went through the gate to the backyard
of the residence and noticed that the sliding glass door
leading into the house from the patio was open.
While announcing "police" several times, Officer
Espinosa went into the house with his H & K USP .40 caliber
pistol drawn. Upon entering the house, he heard "loud
noises" in a room to his right, and heard "objects being
thrown in the room." He walked to the room where he heard
the noises, saw that the door was open and announced "police"
two or three more times. Officer Espinosa then explained:
It was a dark room and there was still
throwing - there was objects being thrown inside
the room. I again, announced "police" about two
times and I heard from one of the subjects in the
room, "metro" really loud. I then heard the
shattering of glass inside the room and I saw a
subject with a white sock over his hand, and what
appeared to me as a semi-automatic handgun inside
of his hand, at which point, he pointed it at me
(indicating) and said "I'm kill you, cop" (sic)
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and turned his body toward me. Simultaneously as
he said, "I'll kill you cop," I just shot at him
right after he said that. He was like at the
window.
According to Officer Espinosa, he was standing at
the foot of the bed when he fired his weapon two times. (See
sketch of bedroom attached as Exhibit A). When asked about
the number of subjects in the room, he said that it appeared
to be two; however, one had already gotten out of the window.
Concerning the subject remaining in the room, subsequently
identified as Leonardo Barquin, the following questions and
answers ensued.
Q. The person who pointed the weapon at you, where was he
standing at when you shot him?
A. He was going through the window.
Q. Do you know if either leg was outside the window?
A. I couldn't tell you.
Q. Or his torso?
A. It was dark and I couldn't tell.
Q. The person who had the white sock on, and the weapon in
his hand, could you tell if he had another sock on the
other hand also?
A. I couldn't tell, I was focused on the weapon in his
hand. I was scared and I was in fear of my life and I
couldn't see it.
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Q. One question I didn't ask you was while you were inside
the bedroom, could you tell if any objects were being
thrown at you?
A. Again, it was dark inside the bedroom. I couldn't see
any objects being thrown at me, I just could hear a
lot of objects being thrown.
The foregoing quotations from Officer Espinosa's sworn
statement constitute the totality of questioning by the
Miami-Dade Police Department Homicide Detectives about what
happened in the bedroom that day when Espinosa allegedly fired
two shots at the suspect.
However, the questioning does continue seeking to
determine what happened after the subject escaped through the
window:
Q. What happened once this subject made it through the
window?
A. I noticed that they went through the window and I
doubled back where I came in through originally and
when I was approaching the sliding glass door to exit
the house, I advised, "shots fired" on the radio. And
at that time, I ran out toward the outside patio and I
seen the first person get on the fence. It was a
thinner white male. He got on the fence, which is on
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the northeast corner of the home in question. He got
up there and he stood up on the top of the fence. He
was already on the other side, and the second male, the
larger guy, got up there as the first guy helped him
get on the fence. As I was getting to the fence to try
to get him, to try to detain him, he turns around and
points again his arm at me, with what appeared to be a
semi-automatic black handgun. Again, in fear of my
life, I thought he was going to kill me and I fired at
him one more time.
Q. About how far away from him do you think you were when
you discharged your weapon?
A. About six feet - five feet, six feet.
Q. How many times did you discharge your weapon?
A. One time.
Q. While we are speaking about your weapon, how do you
normally keep your weapon loaded? With how many
rounds?
A. I keep it loaded with the magazine full and one actual
round in the chamber.
Q. Did the subject ever fire any shots at you?
A. Not that I know of.
Q. Once the subject was at the top of the fence and he
pointed a weapon at you, and you fired, what happened
next?
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A. I heard them fall onto the other side, which would be
the northeast corner lot. They fell on the other side.
Since I knew they had a gun on them and I was scared
that they would shoot me if I got up on the fence, I
decided to get on the air and run around back towards
the entryway where the gates was, where I originally
entered the property.
Q. When you exited the residence after the first
engagement, as you went through the patio area, which
way did you run? Did you go directly towards the
fence?
A. I ran up a little bit towards the east. There was a
table there and I ran around the table.
The foregoing quotations are the entirety of
the information provided by Officer Espinosa about the
third shot fired at the subject.
According to Officer Espinosa, he then ran through the
side gate to the house back to the front yard. Leaving his
marked unit parked in front of the residence, he turned left
and ran down 58th to 147th Avenue(FN1) (FN1, Nine (9) houses
away from the crime scene.) He turned left on 147th Avenue
and then ran to 57th Terrace, which was the next street over
running parallel to 58th Street(FN2) (FN2, The length of two (2)
houses including the front and backyard). Turning left on
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57th Terrace, he ran until he heard "wheezing types of
noises3". (FN3, Six (6) houses away from 147th Ave.) Officer
Espinosa then stated the following:
On 57th Terrace, I turned left, which would
be westbound on 57th Terrace, and I ran past
about two or three houses to where I approximate
the house would be, in back of where they jumped,
to be where they would be coming out from. At
that point, I heard wheezing types of noises. I
was giving - I was trying to set up a perimeter
on the radio, giving description of the subjects
as I was running toward there, and at that time,
I located the noises and saw the subject lying on
the ground between a house and a fence, with a
white sock on his arm and his hand. I drew down
my weapon on him and advised him to show me his
hands. He spread them out, at which point I got
on the air and I advised that there was one
subject in custody, and I started fire rescue.
Q. Did you ever put handcuffs on that subject?
A. No, I did not. As soon as I called for fire rescue on
my radio, and I still had my gun drawn up on him, I see
a white Maxima type of vehicle - undercover CST unit -
drive up. Two detectives jump out of the vehicle and
begin walking towards me. One detective, Serrano,
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walks up to me and pulls me aside to where there is a
parked vehicle, and told me to stand there. I stood by
the parked vehicle, and that was like toward the center
of the roadway. At that point, I had a view of the
Southwest neighborhood there. At that point, he told
me, "stay right here, are you okay?" He asked me if I
had been injured. I told him no I didn't have any
injuries.
Officer Espinosa's sworn statement took a total of
fifteen (15) minutes and provided only the information
included above.
OFFICER JORGE ESPINOSA'S INJURIES
Detective Jaen-Rosello was directed to process the
crime scene beginning at 14773 Southwest 58th Street (the
residence where the shooting occurred), following the blood
trail leading down Southwest 57th Terrace, culminating at
14750 Southwest 57th Terrace (where Barquin was apprehended).
He also processed the third crime scene at 14744 Southwest
55th Terrace, where the second subject, later identified as
Rolando Llanes, was apprehended. These crime scenes will be
discussed in detail at a later point in this memorandum;
however, it is relevant to discuss at this point what he
observed, and Detective Taaffe photographed, concerning
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Officer Espinosa. After taking the officer's weapon,
detective Jaen-Rosello reports the following:
The following injuries are observed on
officer J. Espinosa. A redness of the skin is
noted on his right rib cage, and abrasion on his
let elbow, a cut of his left thumb, and an
abrasion on his right hand (behind thumb).
These injuries were observed and photographed on
January 16, 2004, immediately after the shooting incident,
and their description was included in a death scene
investigation report approved by detective Jaen-Rosello's
supervisor on February 11, 2004. However, in his sworn
statement taken on February 17, 2004, Officer Espinosa was
never asked about his injuries.
STATEMENT OF OFFICER WILLIAM NELSON
Officer William Nelson gave a sworn statement on
January 16, 2004, at 10:50 p.m. on the evening of the
shooting incident. On January 16th, he was assigned to
uniform patrol in the Hammocks District, and was working the
8:00 a.m. to 4:00 p.m. shift. At approximately 1:39 p.m., he
was dispatched as the primary unit to a burglary in process
at a pink house across the street from 14798 Southwest 58th
Street. The 911 call had originated from the latter
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location. The dispatcher also advised Officer Nelson that
there were two (2) male subjects in dark clothing. Officer
Jorge Espinosa was also dispatched as the back-up unit;
however, Espinosa arrived at the scene first. A few moments
later, while Officer Nelson was still enroute, he heard
Officer Espinosa in a "very excited" voice request emergency
assistance. A few moments later, he heard Espinosa ask again
for emergency assistance and stating that shots had been
fired. Finally, he heard that Espinosa was at "57" and that
Espinosa was requesting fire rescue.
Assuming that "57" meant 57th Street or 57th
Terrace, Officer Nelson sped to 57th Terrace arriving
approximately two (2) minutes later. Upon arrival at 14750
Southwest 57th Terrace, he saw Officer Espinosa standing in
front of the house with the wounded subject a few feet away.
Officer Nelson ran up to the victim (Barquin) and noticed
that the victim had a white sock on his right hand, and that
he was bleeding profusely. Officer Nelson got his first aid
kit from his vehicle and began to assist the victim. He
believed that the victim had been shot in the left buttocks,
and the left thigh, and had a wound on his right elbow
possibly a graze wound from a bullet.
While administering first aid, Officer Nelson
attempted unsuccessfully to get the victim's name. However,
he did not respond and just "stared into space". Officer
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Nelson then said, "So, is breaking into a house fun?" At
that point, the victim made eye contact with the officer and
replied, "No." The victim then said, "Please don't let me
die." Fire rescue then arrived and took over the victim's
treatment.
While fire rescue was treating the victim, Officer
Nelson retrieved the victim's pants, which had been cut off
of him in order to facilitate treatment, and emptied the
pockets looking for identification. He did not find any
identification; however, he did recover a watch, a set of
handcuffs, a couple of keys, an American Express card, and a
clear plastic bag containing white pills.
After the victim was airlifted from the scene,
Officer Nelson helped secure the area and began to follow the
blood trail backwards toward where the shooting had occurred.
He lost the blood trail at the side of 14770 Southwest 57th
Terrace, where he observed that the area appeared to have
been recently washed down. He saw a White Latin male, in his
mid-twenties, in the backyard of the residence behind a
locked wrought iron gate; however, he did not speak to him.
The Latin male at 14770 Southwest 57th Terrace was
subsequently identified as Alberto Angel Ferro. (See Ferro's
statement and interviews at page 15, infra)
Officer Nelson told homicide detectives and crime
scene personnel what he had heard and observed, and gave a
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sworn statement later that night.
MEDICAL TREATMENT OF LEONARDO BARQUIN AT
JACKSON MEMORIAL HOSPITAL
Concern has been expressed about the condition of
the victim's body when viewed by the family; therefore, it
would be both helpful and appropriate to discuss Mr.
Barquin's emergency medical treatment at Jackson Memorial
Hospital.
After being treated at the scene by Officer Nelson
and by Miami-Dade Fire Rescue personnel, Mr. Barquin was
airlifted to Ryder Trauma Center at Jackson Memorial Hospital
and arrived at 2:30 p.m. He was admitted with two (2)
gunshot wounds, an open wound of the forearm, traumatic
shock, and an extensive loss of blood. His estimated blood
loss was forty-two (42) liters, and he was given fifty-two
(52) units of blood products intravenously.
In treating the gunshot wounds, the surgeons found
that the victim had a through-and-through gunshot wound to
the left thigh with massive bleeding through the femoral
artery. He also had a gunshot wound to the right buttocks
with massive bleeding into the abdomen. Before he could even
be operated on, he went into cardiac arrest, and had to be
resuscitated. In an attempt to stop the bleeding, the
surgeons had to make multiple incisions and dissections, and
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had to pack his body with special bandages. The wounds were
then closed by suture after a very low systolic blood
pressure was established. The open wound on his arm was
determined to not be a gunshot wound, and was not life
threatening. Despite all these efforts, Mr. Barquin expired
at 9:56 p.m. that evening. One spent projectile was
recovered from the body of Mr. Barquin and turned over to the
Miami-Dade Police Department.
Because of the extensive surgical intervention, and
the packing of Mr. Barquin's body with bandages, there was
significant damage to his body as well as significant
swelling. The undersigned Assistant State Attorney reviewed
the condition of Mr. Barquin's body with the Medical Examiner
to determine if there was any evidence of beating or other
trauma as suspected by some in the victim's family. We were
assured by the Medical Examiner that all wounds and marks on
Mr. Barquin's body were consistent with two (2) gunshot
wounds, with injuries caused by jumping through a window and
fleeing, and with surgical intervention at the Ryder Trauma
Center. There was no evidence of beating or other trauma.
REPORT OF THE MEDICAL EXAMINER
Dr. Mark Shuman conducted the autopsy on January
17, 2004. Dr. Shuman determined that the cause of death was
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multiple gunshot wounds. Leonardo Barquin had two (2)
gunshot wounds, one was a penetrating gunshot wound to the
right buttock, and the other was a perforating gunshot wound
of the left leg. These wounds one described more
specifically as:
PENETRATING GUNSHOT WOUND "A" OF RIGHT BUTTOCK:
An entrance type gunshot wound is 29-3/8 inches
below the top of the head and 2-3/4 inches to the right of
midline on the right upper buttock. It is a 0.9 x 0.5
centimeter, horizontally oriented, oval, skin defect with a
0.2 centimeter, circumferential, abrasion collar that is
irregular inferiorly. No shoot or stipple is associated with
the wound. The projectile continued through the sacrum, into
the pelvis, through the distal descending colon, through a
loop of small bowel that had been repaired surgically, and
was recovered by the surgeons in the right side of the
pelvis.
The direction of the path of the wound is back to
front and right to left.
PERFORATING GUNSHOT "B" OF LEFT LEG:
An entrance type gunshot wound is 38-1/4 inches
below the top of the head and 2-3/4 inches to the right of
the posterior midline of the left thigh. It is a 0.9 x 0.4
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centimeter, horizontally oriented, oval defect with a 0.1
centimeter, circumferential, abrasion collar. No shoot or
stipple is associated with the wound. The wound is
surrounded by an 8.0 x 3.5 centimeter, pink and purple
ecchymosis. The projectile passed through the muscles of the
left thigh medial to the left femur, injured the left femoral
vein, which has been sutured, and exited the left anterior
thigh. The exit wound is within a surgical incision on the
left thigh. It consists of a 1.6-centimeter, semicircular
defect in the left side of the surgical incision, 37-3/4
inches below the top of the head; and a 1.1-centimeter,
irregular, semicircular defect in the right side of the
surgical incision, 39-1/4 inches below the top of the head.
The direction of the path of the wound is back to
front and slightly right to left.
The victim also had multiple abrasions on his
scalp, arms and legs, and two (2)-scalp contusions. All of
the injuries were consistent with the victim's jumping
through a window, jumping over a fence, and fleeing through
the yards of several residences.
Finally, the victim's body had extensive evidence
of medical intervention, including a number of incisions and
sutures.
It was decided by the undersigned Assistant State
Attorney to first cover Officer Espinosa's account of what
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happened on January 16, 2004, juxtaposed with the injuries,
medical treatment, and autopsy of the victim, Leonardo
Barquin. With this knowledge, one can better understand the
following crime scene reports and witness statements, and can
better understand the many unanswered questions and
unresolved issues in this investigation.
Crime Scene # 1 (The residence at 147th 73 Southwest 58th
Street)
January 16, 2004
The first crime scene is the location of the
burglary, and the shooting, which is located at 14773
Southwest 58th Street. The crime scene is described as
follows and is depicted in Exhibits A and B.
The scene is the three-bedroom, two-bath,
single-family home, located on the north side of
the street facing south, with the above listed
address. The rear yard of the house is
surrounded by a wooden fence. There is a small
palm tree in the northeast corner of the yard.
There is a plastic chair up against the tree
facing the rear fence. The chair is
bloodstained. There are also bloodstains on the
fence, above the chair, on the side that faces
south as well as on the side that faces west.
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There is a toy gun on the ground in the southeast
quadrant of the yardFN4. (FN4, According to the
crime scene personnel, the toy gun had the
appearance of having been in the yard for a great
deal of time. It was not suspected to be the
weapon allegedly wielded by Barquin.)
The south master bedroom awning window is
broken. On the ground, below the window, there
are broken pieces of aluminum from the window
frame, glass fragments, and broken pieces of the
wooden Venetian blind. A set of storm panels and
a white sweat sock are lying nearby. There are
bloodstains on top of the storm panels on a glass
fragment, on a piece of wooden slat, and on the
white sock.
The sliding glass door that leads to the
rear yard from the family room is open. Beside
the door is a sofa upon which is a piece of 2 x 4
wood. Reportedly, the wood was used by the owner
to secure the sliding door. The front door is
secured from the inside bay chain lock.
There is extensive ransacking in the master
bedroom. The armoire, dresser, and chest of
drawers have open drawers. Much clothing and
many documents are strewn about the floor. The
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dresser is located along the east wall, across
from the bed. A small top drawer on the dresser
is open, revealing women's lingerie. A casing,
head stamped "Federal S & W", is located on the
lingerie.
The broken rear window is located in the
north bedroom wall. On the floor, below the
window, is a bent bloodstained screen. There are
also bloodstains on the floor and windowsill.
There is an exercise machine near the west side
of the window. Under the machine is a
projectile.
January 17, 2004
On January 17, 2004, the owner of the burglarized
residence called the Miami-Dade Police Department with a
surprising discovery. He had discovered another shell casing
while cleaning up the debris. Mr. Lopez, the homeowner,
reported that the casing was under the glass and debris, and
that he had not touched or moved it. The following describes
the crime scene as reported by Detective Jaen-Rosello at
approximately 5:20 p.m., on January 17th, and depicted in the
sketch attached as Exhibit B:
The scene is the residence located at 14773
Southwest 58th Street. The scene is confined to
the Southwest portion of the back yard. Located
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on the ground under the master bedroom window is
a "Federal S & W .40 caliber" casing. The casing
is observed among and under pieces of glass and
other debris, which came from the broken window.
According to Detective Gallagher the casing was
found by the homeowner while cleaning the debris.
The casing is approximately eight feet east of
the west wooden fence, and one foot six inches
from the bedroom exterior north wall. For an
exact location, please refer to the backyard
sketch prepared by Crime Scene Detective C.
Green. The rest of the scene is unremarkable.
The second casing was not all that was found on
January 17, the day after the shooting. A third casing was
discovered in the backyard near the fence where Barquin had
fled. This scene is described as follows and is also
depicted in Exhibit B:
The scene is the rear (north) yard of the
residence. The yard consists of grass with palm
trees. There is a rear patio with furniture
directly behind the house and a hot tub located
at the northwest corner. A single chair is
located in the northeast corner of the rear yard
by the fence corner.
Homicide Detective Chavarry requested that
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a metal detector be utilized to locate a missing
casing. One (1) Federal .40 S & W casing was
visually found near the northeast corner of the
rear yard. Photographs are taken of the casing
and its location.
The Blood Trail and Crime Scene # 2
(The residence at 14750 Southwest 57th Terrace
Where Leonardo Barquin was apprehended.)
Detective Jaen-Rosello prepared the report on the
secondary crime scene, which is sketched in Exhibit C.
The secondary scene consists of 14780,
14770, 14760, and 14750 Southwest 57th Terrace.
The residences extend northeast from the primary
scene located at 14773 Southwest 58th Street, and
all face north. The first residence which is
14780 Southwest 57th Terrace. Blood is noted on
the inside wooden fence (Marker 1), and also on
the concrete slab (Markers 2 & 3) located in the
southwest corner of the yard. The trail
continues on a northeasterly direction along the
tile walkway (Marker 4), and on the inner and
outer side of the gate (Markers 5 & 6) located on
the east side of the residence.
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The blood trail continues east onto the
property of 14770 Southwest 57th Terrace. Blood
is noted on the north end of the exterior west
wall (Marker 7), on the southwest corner of the
driveway, and also on the west side of the
walkway (Marker 8).
The blood trail continues east onto the
property of 14760 Southwest 57th Terrace.
Several planters with various types of trees and
plants are located in front of the residence;
each planter is enclosed by concrete borders.
Blood is noted along the concrete borders, and
also on the plants located in the planter in the
west side of the walkway (closest to the front
door), on the walkway near the front door, on the
driveway, and along the planter's concrete
borders located on the east side of the driveway
(Markers 9, 10, 11, 12, 13, 14 & 15).
The end of the blood trail is located along
the east side of 14750 Southwest 57th Terrace.
This is the location where the victim collapsed
and was apprehended. A concrete walkway is
located on the west side of the residence, and
leads to an iron gate, which is closed. Blood is
noted on the west exterior wall of the residence,
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which is situated along the east side of the
walkway. Blood is also noted on the walkway
itself, and on the outer side of the wooden fence
located on the west side of the walkway.
Discarded fire rescue supplies are lying on the
grass near the north end of the walkway. Lying
on the concrete walkway are a white "Polo" sock,
a pair of light blue boxer shorts, a pair of
black shorts, a book of matches, an "American
Express" credit card with numbers
"371128729711002" and the name "Gus Minguez" on
it, several loose coins, a set of keys, a white
metal watch, a cigarette lighter, a pair of
handcuffs with the numbers "14324" on them, and a
clear plastic bag containing several white pills.
The shorts and boxer shorts were cut off the
victim by fire rescue personnel. The clothing
and all the before mentioned items were stained
with blood. The rest of the secondary scene is
unremarkable.
Crime scene # 3 (The residence at 14744 Southwest 55th Terrace
where Rolando Llanes was apprehended.)
The third crime scene was where Rolando Llanes was
apprehended. This scene is described as follows; however,
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there is no corresponding sketch:
One (1) floor CBI facing north. A
stonewall is located in front of the house.
Behind the stonewall, property taken from a
residence located at 14773 Southwest 58th Street
was recovered. The west side of the residence is
bordered with a wooden fence. Inside the fence,
markings in the soil indicate the fence was
scaled to allow entry into the rear yard.
The following was collected and signed over to
Detective B. Nichols:
One (1) Swiss Army watch, white metal, S/N
700013131.
One (1) Seiko watch, white metal, S/N 1D3580.
One (1) Enicar watch, white metal, S/N Unknown.
One (1) Flat head screwdriver.
One (1) Electrical device.
One (1) Pair of sweat socks.
Laboratory Analysis Report from the Firearm and
Tool Mark Unit.
In a report prepared by Firearms and Tool Mark
Unit, it was determined that the three (3) casings, and two
(2) projectiles (one from the master bedroom, and one
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recovered from the victim), all were fired in the H & K USP
.40 caliber pistol used by Officer Espinosa on January 16,
2004.
Latent Fingerprint Report
In a report prepared by the Crime Scene
Investigation Bureau, Identification Section, only one latent
print could be identified. The latent print of Rolando
Llanes was lifted from the glass sliding door of 14733
Southwest 58th Street.
Forensic Biology Analysis Report
On its Forensic Biology Analysis Report, the Crime
Laboratory Bureau determined that all of the blood samples
and swabs collected from the master bedroom, and backyard of
14773 Southwest 58th Street, as well as the blood trail
leading to 14750 Southwest 57th Terrace (where Barquin was
apprehended) belonged to Leonardo Barquin.
It should be noted that there is no report nor any
indication that the projectile recovered in the master
bedroom under the treadmill was analyzed to determine if it
had the victim's DNA on it, and to possibly confirm that it
was the result of a through-and-through shot to the victim's
thigh.
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Statement of Rolando Llanes
Rolando Llanes was a friend of Leonardo Barquin,
and helped him burglarize the residence at 14773 Southwest
58th Street, on January 16, 2004. He was arrested shortly
after the burglary, after fleeing and hiding in the yard of
14744 Southwest 55th Terrace. After his arrest, Mr. Llanes
was interviewed by Miami-Dade detectives, and gave a sworn
statement at 6:58 p.m., on the same day. The following
summarizes the information provided by Mr. Llanes:
Mr. Llanes, who was eighteen years old at the time,
was a friend of Leonardo Barquin, and was called on the
telephone by him at approximately 11:00 a.m., on January
16th. They agreed to meet at the Amoco Station on 152nd
Avenue Southwest and Southwest 56th Street to "just chill"
and to "just walk around". Mr. Llanes did, however, bring a
pair of white socks with him just in case they decided to
break into a house. Mr. Barquin had a pair of white socks
also. The two met at approximately noon and began to walk
around the residential neighborhoods looking for a house to
burglarize. They located a house (14773 Southwest 58th
Street), knocked on the door, and determined that no one was
home. They went to the backyard and saw that a window was
"cracked open." Mr. Llanes climbed into this window, which
27
turned out to be the master bedroom. He then went around to
the family room, and opened the sliding glass door for Mr.
Barquin. Putting white socks onto both hands, they both went
back to the master bedroom, and began rummaging around
looking for items to steal. After about five (5) minutes, he
heard "police...stop...police! Upon hearing the police, both
he and Barquin ran toward the window. Llanes managed to get
out, being the thinner man, while Barquin got stuck. As
Llanes ran to the fence in the backyard, he heard two (2)
shots, and heard Barquin make "a hurt noise." He kept
running, then heard two (2) more shots. As he heard the
second two (2) shots, he jumped the fence, ran through
several yards, and went to a nearby shopping center on 57th
Terrace. He never saw the police officer who shot Mr.
Barquin. He tried to hide in the restroom of the
Blockbusters Video store; however, it was locked and he could
not get in. When he ran back outside, he was spotted by the
police and began running again. He ran to 14744 Southwest
55th Terrace, where he hid and emptied his pockets of the
items, which he had stolen in the burglary. He never saw
what Barquin had taken in the burglary. However, he did
state that neither he nor Barquin had a weapon.
He was arrested a few minutes later. The following
items were recovered on the ground adjacent to where he was
arrested: A Swiss Army Men's watch, a Seiko Men's watch, an
28
Enican Men's watch, a flat head Stanley screwdriver, an
unknown electronic device, and two (2) white socks, two (2)
pair of silver earrings, one (1) pair of gold earrings, a
gold I.D. bracelet ("Carolina"), a gold bracelet with
multi-color stones, a gold ring, a silver bracelet, blue
plastic bead bracelet, a silver necklace, and a gold "Angel"
pin.
Interviews of Daniel and Elizabeth Lopez
Daniel and Elizabeth Lopez owned the home at 14773
Southwest 58th Street, which was burglarized by Mr. Barquin
and Mr. Llanes. Mr. Lopez was notified by his alarm company
at approximately 1:50 p.m. that his home alarm had been
activated. He was in Broward County and believed it was
likely a false claim; therefore, he did not go home at that
time. When asked about a weapon in the house, he stated, "I
don't own a gun, nor have I ever had one."
Elizabeth Lopez stated that she and her husband
were having marital problems, and that she had not been home
since Wednesday, (2 days before). She stated that when she
left, there had been a black revolver with wooden grips in a
zippered bag in the closet in the master bedroom.
Daniel Lopez was questioned again about a weapon
and he admitted that he had a felony conviction, and did not
want to admit to possession of a firearm. However, he stated
29
that he did, in fact, have a .22 caliber black revolver with
wooden grips, and that it was kept in a pouch. He also
admitted that he moved the weapon from his house to his place
of business, a tree farm, when his marital problems began.
At 8:30 p.m., on the night of January 16th,
detectives went to the tree farm at 21975 Southwest 264th
Street in Homestead, with Mr. Daniel Lopez, and observed a
black .38-caliber Colt Detective Special, two (2) inch
revolver with wooden grips.
As far as the items recovered from the pockets of,
and nearby Barquin, and Llanes, Mr. and Mrs. Lopez identified
all items as belonging to them, except for the white socks
and screwdriver. The American Express credit card in
Barquin's pocket was in the name of "Gustavo Minguez" who is
the brother of Elizabeth Lopez.
Statement of Sergeant Francisco Armendariz
Francisco Armendariz is a Sergeant in the General
Investigations Unit and is assigned to the Hammocks District.
On January 16, 2004, he responded to the radio call for an
officer needing assistance. He received the call at
approximately 1:45, and arrived in the area a few minutes
later.
He went to the location where Rolando Llanes had
30
been arrested and saw him seated in the back seat of a marked
unit. Sergeant Armendariz immediately recognized Rolando
Llanes since he had investigated his activities for some
time, and had, in fact, arrested him for burglary six (6)
months before. When Sergeant Llanes spoke to him, Llanes
responded: "Why did you have to shoot my homeboy, Leo?"
Sergeant Armendariz asked if he meant Leonardo Barquin, to
which Llanes responded, Yeah, that's him."
Sergeant Armendariz also was familiar with Leonardo
Barquin whom he (the Sergeant) had surveilled for numerous
hours as a known burglar.
Statement of Alberto Ferro
Alberto Ferro was the individual seen by Officer
Nelson in the backyard of 14770 Southwest 57th Terrace
shortly after Leonardo Barquin was arrested. Mr. Ferro
became an object of intense scrutiny by both the Miami-Dade
Police Department, and the FBI in their attempt to locate the
weapon allegedly pointed at Officer Espinosa by Barquin. As
previously noted, neither Leonardo Barquin or Rolando Llanes
had a weapon when arrested, and no weapon was ever recovered
from the crime scenes. Therefore, in addition to the
physical search of the ground covered by Llanes and Barquin
during their flight attempt, the focus turned to Mr. Ferro
31
since he lived just behind, and to the east side of the
location where Barquin had been shot and was at home during
the incident. Additionally, the blood trail left by Barquin
passed by and through Ferro's yard.
Mr. Ferro was first interviewed and gave a sworn
statement at approximately 8:00 p.m., on the evening of the
incident. Mr. Ferro, who was twenty (20) years old at that
time, stated that he lived at 14770 Southwest 57th Terrace
with his parents, and was at home on the day in question. In
the interview, the detective asked about events happening at
approximately 2:30 p.m., however, one can properly assume the
meant approximately 1:30 p.m., since Ferro responded by
discussing the incident in question. Ferro stated that he
was in his room playing videogames, and saw a person in black
running past his window wearing "a long sleeve black - kind
of looked like a hoodie." A moment later, he went to his
front yard to bring in the garbage a can and saw an officer,
firearm drawn, running toward him from the east approximately
from four (4) houses down. The officer yelled at him to get
down, to which Ferro raised his hands. He told the officer
that he lived there, and then he walked to the back of the
house. According to Ferro, while in the backyard, he heard
what he believed was two (2) gunshots. He did not see anyone
fire the shots; however, he returned to the front of his
house and saw two (2) officers this time walking toward him.
32
He stated that he heard one officer (the one that he had seen
first running toward him) tell the other officer that he "had
to shoot him because he saw a weapon, and the person had a
weapon or something." The sworn statement was concluded with
Ferro denying that he had neither seen nor retrieved any
evidence from his yard.
Before the sworn statement, Mr. Ferro was
interviewed by detective P. Diaz and Detective C. McCully.
According to the report filed by Detective Diaz on January
29, 2004, Ferro repeated almost verbatim what he had told
Detectives Diaz and McCully in the sworn statement taken
later that evening at police headquarters. Detective Diaz is
also the individual who took Ferro's sworn statement.
However, Detective McCully's report, prepared on
April 28, 2004, tells a different version of the interview
with Ferro conducted before his sworn statement. Detective
McCully wrote the following:
On January 16, 2004, Ferro had acknowledged
to this investigator and to Detective Diaz that
he knew Barquin and Llanes. Detective Diaz went
on to take Ferro's statement, which stated in
part that although he knew Barquin and Llanes, he
was not involved in this burglary, and that he
did not receive a firearm from either of the
above subjects after they exited the burglary
33
victim's residence....
Detective McCully recontacted Ferro on February 27,
2004, and asked him to take a polygraph. Ferro agreed and
the examination was scheduled for March 12, 2004.
After Detective McCully made repeated attempts to
contact Ferro about his scheduled polygraph examination,
Ferro finally called him. Slattery Associates conducted the
examination. In the pre-interview, Ferro admitted that he
was involved in a burglary attempt with Leonardo Barquin and
several others in approximately April 2003. Ferro also
stated that he believed Barquin was a member of the Latin
Kings; however, he denied his own membership.
Ferro was asked three (3) relevant questions during
the polygraph examination:
1. Did you take part in the burglary
involving Leo Barquin?
[Writer's note: "that burglary" is not
identified].
2. Did you take or conceal a gun, which
Leo Barquin may have had on January 16, 2004?
3. Are you intentionally withholding
information about that burglary and shooting
involving Leo Barquin?
Ferro answered "no" to all three (3) questions to
which George Slattery determined the answers were consistent
34
with deception. Unable to explain "why he failed the
polygraph examination, Ferro was allowed to go home.
Ferro was re-interviewed and given a polygraph
examination by the FBI on December 10, 2004. He was asked
two (2) questions:
1. Did [you] plan with Leonardo or Rolando
to steal from that house?
2. Do you know for sure if Leonardo had a
gun that day? (Emphasis added).
Ferro responded "no" to both questions and it was
the examiner's opinion that his responses were indicative of
deception.
After being told of the deceptive results, Ferro
admitted the following as contained in an FBI report dated
December 27th, 2004:
Ferro admitted that he knew and associated
with Barquin and Rolando. Early in 2003, Ferro,
Barquin and Michael last name unknown (LNU)
attempted a burglary in the South Miami area.
Also, in June 2003, Barquin was supposed to do a
burglary with Ferro, but he never showed up.
That day Ferro was arrested by MDPD in the
process of committing said burglary. Ferro has
been present at Michael's house when Barquin and
Rolando talked about prior burglaries and planned
35
future ones.
On more than one occasion, Barquin offered
to sell Ferro items that he stole from homes he
burglarized. Ferro denied purchasing any of the
stolen property offered by Barquin. Ferro added
that one time Barquin was selling two guns that
he (Barquin) claimed were stolen. Ferro saw the
guns, described one as a black pistol, possibly a
Glock and the other a small "silver pistol"
similar to the ones "seen in James Bond movies."
Barquin bragged that he had burglarized a police
officer's home and stole a gun. Ferro observed
Barquin was always talking about having guns and
selling stolen guns. Ferro never purchased a gun
from Barquin.
Ferro described Barquin as a violent
individual who was always talking about fighting
and hurting people. Ferro stated that Barquin
claimed he was Latin King gang member. One time,
Ferro observed Barquin produce a baseball bat and
attack someone he was having an argument with.
Ferro stated that Barquin and Michael sold
marijuana and cocaine. Ferro frequently
purchased marijuana and cocaine from Michael, but
admitted that he has purchased marijuana from
36
Barquin. Ferro, Barquin and Michael regularly
gathered at Michael's house to socialize and
smoke marijuana.
Regarding the burglary and police shooting
on January 16th, 2004, Ferro stated that he was
home with his grandmother and housekeeper that
day. Ferro explained that he was in his bedroom
playing a television game when he observed
through his window someone running across the
front of his house. Ferro could not describe the
person, but said the individual was wearing a
black sweatshirt with a hood. He stated that
this is the attire that burglars wear because it
helps conceal their faces. Ferro immediately
proceeded outside to investigate what was
happening. As Ferro exited the front of his
house, he observed blood dropping on his driveway
and two MDPD officers running towards him. The
MDPD officer closest to him was holding a gun and
a police radio, and shouting, "freeze." Ferro
stated that he stopped and raised his hands.
Moments later, Ferro observed said officer turn
away from him and point his weapon towards the
back of his neighbors house. Ferro could not see
from where he was standing who the officer was
37
pointing the gun at. Realizing that he was not
the person that officer was shouting at, Ferro
grabbed a garbage can that his grandfather left
outside earlier that day and returned it to his
backyard where it is normally kept. Then Ferro
entered his house through the rear sliding glass
door and told his grandmother and housekeeper to
stay in the house, because there was police
activity outside. Ferro later opened his front
door and stood in the doorway, smoked a cigarette
and watched the police activity outside. While
standing in the doorway, Ferro observed a large
police presence in the neighborhood, and was
instructed by an MDPD officer to say inside.
Ferro claimed that he did not know at that time
who the police were chasing. It was not until
later that evening that a neighbor informed Ferro
that Barquin had been shot and killed by the
police.
Ferro denied finding a gun on his property
that day or anytime subsequent to the incident.
He denied knowing that Barquin or Rolando were
going to commit a burglary in his neighborhood
that day. He advised that he has never
burglarized houses in his neighborhood, but
38
stated that in 2003, Barquin and Rolando
burglarized a house about four blocks from his
house. Ferro denied having any contact with
Barquin and Rolando on January 16, 2004. Ferro
stated that a couple of days after the shooting,
he was outside his house when Michael drove up in
his car, and commented about Barquin's death.
Michael did not say anything about Barquin having
a gun the day of the shooting.
Ferro believes that Barquin probably had a
gun the day of the shooting. He explained that
Barquin stole guns from the houses he
burglarized, sold guns and talked about carrying
a gun on his person. Ferro added that Barquin
talked about having a gun on him when he
burglarized homes. Ferro believed that Barquin
was capable of shooting someone, but Ferro did
know if Barquin ever shot or attempted to shoot
anyone.
Ferro advised that a few days after the
shooting, a man claiming to be Barquin's
step-father tried two times to make contact with
him. Ferro did not know the man's name. The man
came to Ferro's house twice wanting to talk to
him, but he was not home. The first time the man
39
spoke with Ferro's father and the second time he
spoke with Ferro's grandfather. Ferro believes
that the reason for the visit was to influence
his statements to the police and attorneys
regarding the shooting and his knowledge of
Barquin's past. Ferro added that Barquin's
family stands to make a lot of money for the
shooting and want him to help them with the
lawsuit. About three weeks ago, Ferro was
approached by Michael's older brother, Ramiro
(LNU) at the Dadeland Mall. Ramiro brought up
Barquin's shooting and told Ferro that Barquin's
mother wanted to talk to him about the shooting.
Ferro stated that Barquin's mother wanted to talk
to him because she is suing the MDPD. Ferro
said, "I know she wants to offer me money to say
things to the police that would help her with the
lawsuit." Ferro stated that someone at TGK, Dade
County's Correctional Facility, made two, three
attempts to call him at home. All the calls were
received by his grandfather and occurred at 2:00
or 3:00 in the morning. Ferro advised that his
grandfather never said if he spoke with the
caller, but Ferro believes it was Rolando trying
to make contact with him.
40
Ferro did not provide any further
information at this time.
Two points should be noted in Ferro's FBI
interview: (1) He does not mention hearing two gunshots
while he was in his backyard, and (2) he continues to deny
finding a weapon belonging to either Barquin or Llanes on the
day of the shooting.
The Professional Compliance Bureau Investigation
Officer Jorge Espinosa resigned from the Miami-Dade
Police Department on March 1, 2006. From at least as early
as May 2003 until at least the date of his resignation,
Officer Espinosa was under criminal investigation by the
Professional Compliances Bureau (PCB) of the Miami-Dade
Police Department. According to PCB reports and interviews
conducted by the undersigned Assistant State Attorneys with
PCB investigators, Officer Espinosa was suspected of engaging
in a wide range of criminal activities including acting as a
lookout for narcotics rip-offs, arson, insurance fraud,
credit card fraud, and involvement in residential burglaries.
In fact, on January 16th, 2004, the day of the shooting
incident, Officer Espinosa's vehicle was secretly equipped
with an electronic tracking device (Teltrac) so that PCB
investigators could monitor his travels while on duty.
41
Upon learning of this information, the undersigned
Assistant State Attorneys decided to keep the police shooting
investigation open to determine if any of Officer Espinosa's
suspected criminal activities related in any fashion to the
shooting of Leonardo Barquin of Leonardo Barquin (specially
the allegations of involvement in residential burglaries).
It was also decided to keep the shooting case open in the
hope that, if Espinosa or any of his associates were arrested
as a result of the PCB's or any other police agencies'
investigations, new witnesses or new information might be
developed which could shed new light on the shooting of
Leonardo Barquin.
UNANSWERED QUESTIONS AND OPEN ISSUES
At the outset, the undersigned Assistant State
Attorneys are concerned that, despite the known issues with
the crime scene and the placement of the casings and
projectiles, despite the fact that no weapon was found, and
despite the fact that Barquin had been shot from behind, the
sworn statement of Officer Espinosa took only fifteen (15)
minutes. The statement was taken a month after the incident
after the problems listed above were well known; yet the
interview was cursory and made no attempt to resolve these
serious issues. Furthermore, it is the policy of the
42
Miami-Dade Police Department and the Police Benevolent
Association (which provides union and legal representation to
the police officers) to not allow prosecutors to interview
the officer, to attend the talking of the sworn statement, or
even to provide any questions or input to the detective
conducting the interview. Therefore, the office of the State
Attorney had nothing to do whatsoever with the taking of the
sworn statement.
As can be seen, Officer Espinosa was simply allowed
to state his version of the events with no follow-up
questions and no attempt to address the inconsistencies
within his own statement. The detectives who conducted this
investigation are experienced professionals who would never
allow a civilian witness to be questioned in such a cavalier
fashion. Allowing such minimal questioning to occur creates
the perception that police officers do not effectively
questions one of their own. Once the reports are turned over
to the prosecutors months later, the crime scene no longer
exists, the shooting officer will not speak to prosecutors,
and there is little that can be done by prosecutors at that
point to obtain additional information. Yet flawed
investigation or not, we are required to make the important
determination of whether or not the killing of a human being
is justified.
With this background, and in addition to the issues
43
previously noted in this report, the following is the list of
the serious and significant unanswered questions that we
have:
(1) Why were the crime scene sketches of
the bedroom and the yard not used in the
questioning of Officer Espinosa? The exact
locations of Espinosa and Barquin at the time of
the three (3) shots, both in the bedroom and the
backyard, is invaluable information in
determining whether the shooting was justified or
not.
(2) why did the officer advance so far into
the bedroom (from the door to the foot of the
bed) before firing a shot? Officer Espinosa is
never asked and never addresses this point.
Instead, he implies that the shooting happened
immediately upon his entry into the bedroom.
(3) were the two (2) shots fired in the
bedroom fired from the same location or did the
officer move between the first shot and the
second shot? This answer would assist in
answering question number four (4).
(4) How do you explain one casing in the
open desk drawer and one casing outside of the
window, on the ground, under the grass and
44
debris? Did the officer fire out of the window?
(5) How do you explain the officer's
statement that the victim was facing the officer
and pointing a weapon at him with the officer's
other statement that the victim was going out the
window? Some explanation and a reenactment would
have provided essential information on this
point.
(6) Was it possible for the victim to point
a gun at the officer, yet be shot from behind?
(7) How do you explain the officer's
statement that he saw the victim pointing a gun
at him in the bedroom, yet it was too dark to see
anything else? What were the lighting conditions
in the room at the time?
(8) Could a person with a sock on his hand
also hold a weapon and point it at someone?
(9) Could the officer tell what shots
actually struck the victim? How did the victim
react physically when the three (3) shots were
fired?
(10) Was the projectile recovered on the
bedroom floor under the treadmill the result of a
through-and-through shot to the victim's thigh?
(11) Was the victim struck two (2) times
45
inside the bedroom or one inside and one outside
in the yard?
(12) What was the explanation for the bent
screen (with blood) on the floor in the bedroom?
Was it bent and knocked out upon Llanes entry
through the window?
(13) As for the shot fired at the victim in
the backyard, if the officer knew that the victim
had a weapon, why did the officer get so close to
him? On his sworn statement, the officer said
that he was five (5) to six (6) feet away from
the victim when he fired.
(14) Where exactly was the officer when he
fired the shot at the victim as he was climbing
over the fence? Is this consistent with the
location of the shell casing?
(15) Was it possible for the wounded victim
to climb the fence with a sock on his hand and
still turn and point the gun at the officer? The
officer should have been closely questioned about
this point.
(16) Why did the detectives and crime scene
personnel fail to find the casing below the
window and the casing in the backyard until the
next day when the homeowner called? This failure
46
rendered the finding of the casings virtually
useless as evidence and leaves open the
speculation that they could have been improperly
placed there after crime scene personnel left the
scene.
(17) Was it physically possible for Rolando
Llanes to be standing on top of the fence helping
the victim to get over the fence like the officer
testified?
(18) Why did the officer run so far (i.e.,
down 58th Street, up 147th Avenue, and down 57th
Terrace) in his attempt to apprehend the wounded
victim, rather than using his police vehicle
which was parked in front of the residence and
which the officer had to run past? It is
possible that Officer Espinosa jumped the fence,
like Barquin and Llanes, and followed behind
Barquin to where he collapsed. This possibility
was never considered in the officer's interview
and could have provided an explanation for
Espinosa's injuries.
(19) What was the explanation for the
officer's injuries? Nothing in his statement
explains the injuries noted and photographed by
crimes scene personnel immediately after the
47
shooting.
(20) Did the officer know the victim?
According to the statements of other officers,
Barquin was reasonably well known in the Hammocks
District.
(21) Why was ASA Miller-Batiste kept away
from the crime scene while the PBA attorney was
given full access?
Because of these unanswered questions and the
ongoing criminal investigations of Officer Espinosa, the
undersigned ASA's have been reluctant to issue a final
closeout memorandum in this case. We have serious doubts
about the truthfulness of Officer Espinosa and the
investigation conducted by the Miami-Dade Police Department
did nothing to dispel these doubts. In fact, several aspects
of the investigation, as discussed above, increased our
doubts and made clearing or charging Officer Espinosa even
more difficult.
After being provided with the investigative file
concerning the shooting, the undersigned ASA's engaged in
several efforts to gain additional information so that this
case could be brought to closure with either a clearance or
an arrest. For example, we contacted the attorney for
Officer Espinosa and requested an opportunity to speak with
him in order to clear up several issues not covered in the
48
police investigation. We informed the attorney that we were
unable to close out the shooting investigation until we could
resolve these issues and that the investigation would remain
open and "hanging over the officer's head." The attorney
declined our request without a subpoena to compel his
testimony. Since the subpoena, by operation of state law,
would confer immunity on Officer Espinosa, we of course
declined.
We also contacted the Office of the United States
Attorney and the FBI on two (2) occasions to request that
they take a fresh look at the case by utilizing the
investigative power of a Federal Grand Jury. The undersigned
ASA's contacted both agencies in July of 2006 and Chief
Assistants Jose Arrojo and Don Horn made the same request in
December of 2005. The State Attorney herself even wrote a
letter to the United States Attorney and the FBI in August of
2006 requesting their assistance. To all of our entreaties,
we were informed that the FBI had reviewed the case in late
2003 and early 2004 and had determined that no federal
investigation was warranted.
When Officer Espinosa resigned from the Department
on March 1, 2006, we felt that some of the pressure for
acting swiftly had been relieved since he was no longer
carrying a badge and a gun. However, we still wanted to keep
the case open hoping for new information. We had hoped, and
49
in fact still hope, that the criminal investigations
involving Espinosa might develop new information. That is
why, as we have previously explained, we kept the case open.
We originally requested in the summer of 2008, that
the Miami-Dade Police Department release Officer Espinosa's
PCB investigative file so that we could discuss it in the
present report. For reasons that are unclear, this file was
finally produced on April 3, 2009.
After all of these efforts and with all of the
aforementioned unanswered questions and unresolved issues, we
have now reluctantly to close out this investigation for the
reasons that follow.
Legal Analysis
The legal analysis must consider (1) whether the
shooting of Leonardo Barquin was justified by Officer
Espinosa's belief that he was in fear of imminent bodily harm
or death from Barquin's pointing a gun at him on two
occasions; (2) whether Officer Espinosa was justified
shooting Barquin as a fleeing felon or (3) whether Officer
Espinosa's shooting of Barquin was not justified and,
therefore, Espinosa should be subject to criminal charges.
Florida Statute 776.05 provides in pertinent part:
A law enforcement officer need not retreat
50
or desist from efforts to make a lawful arrest
because of resistance or threatened resistance to
the arrest; the officer is justified in the use
of any force:
(1) Which he or she reasonably believes to
be necessary to defend himself or herself or
another from bodily harm while making the arrest;
(2) When necessarily committed in arresting
felons fleeing from justice....
Based upon the flawed and incomplete investigation
in this case, there is simply not enough information to make
a determination that the officer was attempting to defend
himself from bodily harm. Likewise, there is an insufficient
record to make a determination beyond a reasonable doubt that
the officer did not believe that he was at risk, thus making
the use of force not legally justified.
Because of the aforementioned insufficient evidence
and incomplete record; it is our determination that, Officer
Espinosa can be neither cleared nor charged criminally under
the provision of the statute relating to the defense from
bodily harm.
Next we turn to the use of force necessary to
arrest a fleeing felon. Although, this justification was not
offered by Officer Espinosa, legally it must still be
51
considered. Despite the flawed investigation, three (3)
pertinent facts are known: (1) The victim, Leonardo Barquin,
and his accomplice, Rolando Llanes, were burglarizing the
residence at 14773 Southwest 58th Street; (2) Both Barquin
and Llanes fled the scene of the crime of burglary, and
burglary is a felony; (3) Barquin was shot while attempting
to flee from justice after committing a felony. The only
element remaining for a legally justified use of force under
this provision is, was such use of force necessary? This
requirement has troubled the undersigned ASAs from the
beginning of this investigation. Was it necessary to shoot
Barquin to prevent him from fleeing if he had a weapon? Was
it necessary to shoot Barquin to prevent him from fleeing if
he did not have a weapon? Unfortunately, the law in Florida
instructs us that it does not matter whether the fleeing
felon was armed or not. A fleeing felon can be shot in the
back while unarmed and while not posing any risk to anyone,
and the law makes it perfectly clear that the officer's use
of deadly force is legally justified.
Under Florida Statutes, and given the flawed and
incomplete records before us, we are unable to state beyond a
reasonable doubt that the shooting of Mr. Barquin was not
necessary to prevent him from fleeing. Yet despite this
conclusion, we are reluctant to, and will not, conclude that
the shooting of Mr. Barquin was necessary and thereby render
52
Officer Espinosa's use of deadly force legally justified.
The sad and unsatisfying conclusion to this case is that
since we are unable to prove beyond a reasonable doubt that
Officer Espinosa's actions were unlawful, and likewise unable
to prove that his actions were legally justified, we have no
other choice at this point to close the case as inconclusive.
This will allow the matter to be litigated in civil court,
where the burden of proof is different and the standards for
the justified use of force against a fleeing felon are
different, should the parties wish to do so.
Prepared by:
Assistant State Attorney Assistant State Attorney
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