From Victor Pestano appeal: In 1995, the victim’s body was found in the trunk of her automobile, submerged in a canal. An autopsy revealed that the victim died from blunt trauma to the head and from drowning. The autopsy also revealed the presence of semen in the victim’s vagina. Miami-Dade police detectives investigated this case for a period of time, but were unable to develop any leads or clues as to the perpetrator(s).
In 2003, the police received a call implicating Pestano and co-defendant Dulie Alonzo Green, Jr., in this crime. The informant gave the police a sworn statement that these men had admitted to abducting, robbing, and raping the victim. The police got a search warrant to obtain saliva samples from the men for DNA testing.
The police went to Pestano’s house to serve the warrant. Pestano was not home when the officers arrived; they decided to wait. When Pestano arrived, the police identified themselves and asked Pestano to accompany them to the station. Pestano asked to change his clothes; thereafter, at about 6:30 a.m., he rode to the station with the officers.1 The detective did not produce the search warrant and did not rely on it.
At the station, Pestano was placed in a wired interview room. Pestano was read his Miranda rights. He signed a written waiver and consented to providing a DNA sample. At about 7:40 a.m., the police began interrogating Pestano and the co-defendant separately. Each man gave opposing accounts of the events: each said that he picked the other man up in a car with an unknown female passenger in the front seat. Each claimed he had sex with the female in exchange for the other man letting her go; each said he left, leaving her with the other man.
Pestano asked to speak with Dulie Green. The police permitted the men to speak to each other. They were placed in a room together; their conversation was video and audio taped. The men agreed to a version of the story that placed the blame on a third person, who was deceased. They agreed to say that they left the victim alone with the third person.
After the co-defendants conferred, they were again interviewed separately. Pestano was re-advised of his Miranda rights. After further interrogation, Pestano gave a sworn statement. The statement contained Pestano’s original statement and the purportedly “true” version: The co-defendants were walking with a third man. The third man jumped into the woman’s car and ordered them to get in front. The three men drove to the park where the co-defendants got out of the car. Thereafter, the third man got out of the car and said the victim had agreed to have sex with them. The co-defendants then departed, leaving the victim with the third man. At that point, the interrogation concluded.
Prior to trial, Pestano filed a motion to suppress or exclude the video/audio tape of the conversation between the co-defendants, a motion to suppress or exclude the confession, and a motion to suppress/exclude the statements and evidence based on an unlawful arrest. At the hearing on the motions, the court found that Pestano was not arrested when he was picked up at his house, and denied the latter motion accordingly. The court denied the motion to suppress the videotaped conversation on the grounds that there was no expectation of privacy in a police interview room and that the admission of the tape did not deprive Pestano of his right of confrontation.
At trial, the state presented DNA evidence, physical evidence from the crime scene and forensic evidence regarding the murder. Pestano’s defense was that he merely had consensual sex with the victim. Pestano requested that the court give an independent act jury instruction. The court declined the request. The jury convicted defendant as charged, without a firearm.
Man sentenced to life in prison for 1995 rape and murder of JMH nurse
Victor Pestano v State of Florida 2008
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INMATE INFORMATION
DC Number: M55967
Name: GREEN, DULIE A JR
Race: BLACK
Sex: MALE
Hair Color: BLACK
Eye Color: BROWN
Height: 6’04”
Weight: 210 lbs.
Birth Date: 11/01/1979
Initial Receipt Date: 10/20/2006
Current Facility: MAYO C.I. ANNEX
Current Custody: CLOSE
Current Release Date: SENTENCED TO LIFE
Aliases:
DULIE A GREEN JR
DULIE ALONZO GREEN JR
Current Prison Sentence History:
Offense Date Offense Sentence Date County Case No. Prison Sentence Length
01/14/1995 1ST DG MUR/PREMED. OR ATT. 08/11/2006 MIAMI-DADE 0328843 SENTENCED TO LIFE
01/14/1995 SEX BAT/ WPN. OR FORCE 08/11/2006 MIAMI-DADE 0328843 SENTENCED TO LIFE
01/14/1995 KIDNAP,ASSAULT OR TERRORIZE 08/11/2006 MIAMI-DADE 0328843 SENTENCED TO LIFE
01/14/1995 CARJACK W/FA,DEADLY WEAPON 08/11/2006 MIAMI-DADE 0328843 SENTENCED TO LIFE
Note: The offense descriptions are truncated and do not necessarily reflect the crime of conviction. Please refer to the court documents or the Florida Statutes for further information or definition.
Incarceration History:
Date In-Custody 10/20/2006
Date Out-of-Custody Currently Incarcerated
INMATE INFORMATION
DC Number: M07866
Name: PESTANO, VICTOR E
Race: WHITE
Sex: MALE
Hair Color: BLACK
Eye Color: BROWN
Height: 5’07”
Weight: 160 lbs.
Birth Date: 01/09/1979
Initial Receipt Date: 01/31/2007
Current Facility: GULF C.I.- ANNEX
Current Custody: CLOSE
Current Release Date: SENTENCED TO LIFE
Aliases:
VICTOR PESTANO
VICTOR E PESTANO
VICTOR EVELIO PESTANO
Current Prison Sentence History:
Offense Date Offense Sentence Date County Case No. Prison Sentence Length
01/14/1995 1ST DG MUR/PREMED. OR ATT. 01/10/2007 MIAMI-DADE 0328843 SENTENCED TO LIFE
01/14/1995 SEX BAT/ WPN. OR FORCE 01/10/2007 MIAMI-DADE 0328843 30Y 0M 0D
01/14/1995 KIDNAP;COMM.OR FAC.FELONY 01/10/2007 MIAMI-DADE 0328843 SENTENCED TO LIFE
01/14/1995 CARJACK W/O FA/DEAD WEAP 01/10/2007 MIAMI-DADE 0328843 30Y 0M 0D
Note: The offense descriptions are truncated and do not necessarily reflect the crime of conviction. Please refer to the court documents or the Florida Statutes for further information or definition.
Incarceration History:
Date In-Custody 01/31/2007
Date Out-of-Custody Currently Incarcerated
