Michael T. Rivera v. State of Florida

Supreme Court of Florida
____________
No. SC13-1077
____________
MICHAEL T. RIVERA,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[November 25, 2015]
PER CURIAM.
This case is before the Court on appeal from an order denying a successive
motion to vacate a judgment of conviction of first-degree murder and a sentence of
death under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const.
BACKGROUND
Michael T. Rivera was convicted and sentenced to death for the first-degree
murder of Staci Lynn Jazvac. Rivera v. State (Rivera I), 561 So. 2d 536, 537 (Fla.
1990). In the opinion affirming the conviction and sentence, this Court detailed the
facts of the murder:
Eleven-year-old Staci Lynn Jazvac left her Lauderdale Lakes
home on bicycle at about 5:30 p.m. on January 30, 1986, to purchase
poster board at a nearby shopping center. A cashier recalled having
sold her a poster board between 6:30 and 7:00 p.m. When Staci failed
to return by dusk, her mother began to search. At about 7:30 p.m. the
mother encountered a Broward County Deputy Sheriff, who had
Staci’s bicycle in the trunk of his car. The deputy found the bicycle
abandoned in a field alongside the shopping center. A police
investigation ensued.
Police first connected Michael Rivera to Staci’s murder through
a complaint filed by Starr Peck, a Pompano Beach resident. She
testified that she had received approximately thirty telephone calls
during September 1985 from a man who identified himself as “Tony.”
He would discuss his sexual fantasies and describe the women’s
clothing he wore, such as pantyhose and [a] one-piece body suit. She
received the last telephone call from “Tony” after Staci’s murder. Ms.
Peck testified that he said he had “done something very terrible. . . .
I’m sure you’ve heard about the girl Staci. . . . I killed her and I didn’t
mean to. . . . I had a notion to go out and expose myself. I saw this
girl getting off her bike and I went up behind her.” She testified that
he had admitted putting ether over Staci and dragging her into the
back of the van where he sexually assaulted her. Rivera had been
employed by Starr Peck, and she identified him as “Tony.”
On February 13, Detectives Richard Scheff and Phillip Amabile
of the Broward County Sheriff’s Department took Rivera into custody
on unrelated outstanding warrants and transported him to headquarters
where they told him that they wanted to speak to him. Detective
Scheff testified that Rivera responded, “If I talk to you guys, I’ll spend
the next 20 years in jail.” After reading Rivera his Miranda rights,
[n.2] Detective Scheff told Rivera that someone had advised them that
Rivera had information about the disappearance of Staci Jazvac. The
detective testified that Rivera admitted making the obscene phone
calls to Starr Peck but denied having abducted or murdered Staci.
[N.2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1206,
16 L. Ed. 2d 694 (1966).
In subsequent interviews, Rivera admitted that he liked
exposing himself to girls between ten and twenty years of age. He
preferred the Coral Springs area because its open fields reduced the
-2-
likelihood of getting caught. He would often borrow a friend’s van
and commented that “every time I get in a vehicle, I do something
terrible.” Rivera then admitted to two incidents. In one, he said he
had exposed himself to a girl pushing a bike. When asked what he did
with her, Rivera replied: “Tom, I can’t tell you. I don’t want to go to
jail. They’ll kill me for what I’ve done.” In the other, he said he had
grabbed another young girl and pulled her into some bushes near a
Coral Springs apartment complex.
Staci’s body was discovered on February 14 in an open field in
the city of Coral Springs, several miles from the site of the abduction.
Dr. Ronald Keith Wright, a forensic pathologist, testified that most of
the upper part of the body had decomposed and that the body was
undergoing early skeletonization. The doctor concluded that death
was a homicide caused by asphyxiation, which he attributed to ether
or choking.
....
The jury heard testimony from several of Rivera’s fellow
inmates. Frank Zuccarello testified that Rivera admitted that he had
choked another child . . . in the same way he had choked Staci; that
Rivera said he had tried to kill [that other child] but was frightened
away; and that Rivera said he had taken Staci to the field where she
screamed and resisted, and he choked her to death after things got out
of hand. Rivera also admitted that he told Starr Peck that he had
murdered Staci, saying that confiding in her was the biggest mistake
of his life. William Moyer testified that Rivera had stated to him:
“You know, Bill, I didn’t do it, but Tony did it.” He later overheard
Rivera call Starr Peck and identify himself as “Tony.” Peter Salerno
testified that Rivera told him: “I didn’t mean to kill the little Staci
girl. I just wanted to look at her and play with her.”
A manager of a Plantation restaurant testified that he had
received over two hundred telephone calls during a two-year period
from an anonymous male caller. On February 7, the Friday before
Staci’s body was discovered, the caller identified himself as “Tony”
and said that he “had that Staci girl” while wearing pantyhose, and
that he had put an ether rag over her face.
Id. at 537-38. The jury recommended a death sentence by unanimous vote. Id. at
538. In support of the death penalty, the trial court found four aggravating
-3-
circumstances: (1) Rivera had previously been convicted of a felony involving the
threat or use of violence; (2) the murder was committed during the commission of
a felony; (3) the murder was especially heinous, atrocious, or cruel (HAC); and (4)
the murder was committed in a cold, calculated, and premeditated manner (CCP).
Id. at n.4. The trial court found one statutory mitigating circumstance was
established, that Rivera was under the influence of an extreme mental or emotional
disturbance, and found no nonstatutory mitigating circumstances.1 Id. at n.5.
Rivera raised four claims on direct appeal: (1) the introduction of similar
fact evidence regarding a sexual assault on another girl violated both Williams v.
State, 110 So. 2d 654 (Fla. 1959), and the Florida Evidence Code; (2) the trial
court improperly excluded “reverse” Williams rule evidence that the crime had
been committed by another person; (3) the death penalty was disproportionate
because the HAC and CCP aggravating factors were not supported by the record;
and (4) the trial court erred when it failed to find that Rivera acted under extreme
duress or under the substantial domination of another, or that his capacity to
appreciate the criminality of his conduct or conform his conduct to the
requirements of the law was substantially impaired. Rivera, 561 So. 2d at 538-41.
1. Rivera’s trial preceded this Court’s decision in Campbell v. State, 571 So.
2d 415 (Fla. 1990).
-4-
This Court struck the CCP aggravating factor, but affirmed the conviction and
sentence. Id. at 541.
In the initial postconviction motion, Rivera presented twenty claims. Rivera
v. State (Rivera II), 717 So. 2d 477, 480 (Fla. 1998). The claims were:
(1) whether Rivera was denied due process, a full and fair hearing,
and an impartial tribunal on his motion to vacate; (2) whether due
process was violated by the exclusion of evidence which may have
gone to reasonable doubt; (3) whether Rivera was denied effective
assistance of counsel due to counsel’s failure to raise a prejudicial pre-
indictment delay issue; (4) whether counsel’s performance was
deficient in not presenting certain evidence during the penalty and
sentencing phases; (5) whether counsel’s performance was deficient in
not presenting a voluntary intoxication defense; (6) whether Rivera
was sentenced to death in violation of the eighth amendment; (7)
whether Rivera’s sentence of death rests upon an unconstitutional
aggravator; (8) whether Rivera was denied his right to a fair and
impartial jury; (9) whether the trial court’s rulings cumulatively
denied Rivera a fair trial; (10) whether Rivera was denied effective
assistance of counsel during the guilt phase; (11) whether counsel was
ineffective in failing to [e]nsure that the penalty phase jury received
accurate instructions; (12) whether the eighth amendment was
violated by the trial court’s refusal to consider mitigating
circumstances set out in the record; (13) whether counsel was
ineffective in not objecting to the penalty phase jury instructions; (14)
whether due process was denied when the court relied on facts not of
record in sentencing Rivera; (15) whether the trial court
unconstitutionally burdened Rivera in establishing mitigators beyond
a reasonable doubt; (16) whether Rivera’s penalty phase jury received
instructions guiding and channeling its sentencing discretion; (17)
whether counsel’s failure to object to misleading evidence was
ineffective assistance of counsel; (18) whether the procedure whereby
appointed counsel is selected and funded in Broward County creates
an irreconcilable conflict of interest; (19) whether the State’s
introduction of Williams rule evidence is reversible error since two
convictions were reversed on appeal; and (20) whether the trial court’s
cumulative errors denied Rivera a fair trial.
-5-
Id. at 480 n.1. The Court affirmed the denial of all twenty claims except the
summarily denied claim that Rivera’s counsel was ineffective for failing to
adequately investigate and prepare for the penalty phase, which the Court
remanded for an evidentiary hearing. Id. at 484, 487. After an evidentiary hearing,
the trial court denied relief, and this Court affirmed. Rivera v. State (Rivera III),
859 So. 2d 495, 512 (Fla. 2003). The Court also denied habeas corpus relief. Id.
On October 1, 1999, Rivera filed a successive rule 3.850 motion. Rivera v.
State (Rivera IV), 995 So. 2d 191, 193 (Fla. 2008).2 Rivera amended the motion in
2001 and again in 2004. Id. The amended motion raised the following claims:
(1) Rivera was deprived of due process under Giglio[ v. United States,
405 U.S. 150 (1972),] when the prosecution intentionally permitted
false or misleading evidence to be presented to Rivera’s jury and used
to obtain a conviction; (2) Rivera was deprived of his right to due
process and other constitutional rights under Brady[ v. Maryland, 373
U.S. 83 (1963),] because the State failed to disclose evidence which
was material and exculpatory in nature or presented misleading
evidence, or defense counsel unreasonably failed to discover and
present exculpatory evidence, or new evidence establishes manifest
injustice; (3) Rivera was denied a fair trial and postconviction
proceedings due to the trial judge’s bias and predetermination of the
issues; and (4) the results of DNA testing constitute newly discovered
2. The successive motion was filed while the remand on the ineffective
assistance of penalty phase counsel claim was pending before the trial court.
Rivera IV, 995 So. 2d at 193. When the denial of the ineffective assistance claim
was appealed, this Court ordered the trial court to consider the successive
postconviction motion pursuant to the criminal rules in effect prior to October 1,
2001. Id.
-6-
exculpatory evidence that, when considered with other evidence,
establishes Rivera’s entitlement to a new trial.
Id. After a Huff3 hearing, the trial court summarily denied all claims. Id. This
Court affirmed the denial of the third claim, but remanded for an evidentiary
hearing on the Giglio/Brady ineffective assistance and newly discovered evidence
claims. Id. at 194, 197-98. This is the appeal from the denial of these claims
following an evidentiary hearing.
Claims
With respect to the newly discovered DNA evidence claim, several hairs
were collected from Staci’s body and from a van that belonged to Mark Peters,
which the State argued during trial was used by Rivera to abduct Staci. During
trial, the State presented a hair comparison expert who testified that a hair found in
Peters’s van was similar to the known hair of Staci. However, the DNA analysis
performed on that hair in 2003 revealed that it did not match the known DNA
profile of Staci.4 Rivera alleged in his amended successive postconviction motion
3. Huff v. State, 622 So. 2d 982 (Fla. 1993).
4. Ten hairs were provided to the DNA laboratory, as well as the known
hairs of Staci and Rivera. Rivera does not raise any claims with respect to the
remaining hairs that were analyzed for DNA comparison. Two of the hairs
provided to the laboratory were collected from Peters’s van, one of which is the
basis of Rivera’s claim. The second hair also did not match the DNA profile of
Staci. The eight remaining hairs were collected from Staci’s body. Three were
described as originating from “white top,” two of which were from the same donor.
Staci and her maternal relatives could not be excluded as potential donors of these
-7-
that this newly discovered evidence, when considered in conjunction with all other
exculpatory evidence, entitled Rivera to a new trial.
In the Giglio claim, Rivera alleged that the State intentionally permitted
Frank Zuccarello, a jailhouse snitch, to present false and misleading testimony that
he was not offered a deal by the State in exchange for his testimony against Rivera.
In support of this claim, Rivera attached to his successive motion the following
documents: (1) a plea offer extended by the State to Zuccarello, (2) four Broward
County Jail “prisoner receipts” dated between April and July 1986 releasing
Zuccarello into the custody of various law enforcement officers, and (3) two
documents that refer to Zuccarello as a confidential informant (CI).
In his Brady/ineffective assistance claim, Rivera alleged that the State
withheld the above evidence. Rivera also alleged that the State withheld: (1) two
reports that indicated two separate interviewers believed Zuccarello repeatedly lied
during polygraph examinations with respect to the murder of Stanley Cohen;5 and
two hairs. The third “white top” hair was significantly degraded and provided a
partial profile that also could not exclude Staci or her maternal relatives. With
regard to Rivera, the results for this hair were inconclusive. Five hairs were
described as originating from “left shoe,” and both Rivera and Staci were excluded
as possible donors.
5. Joyce Cohen, Stanley Cohen’s wife, was convicted for his murder. See
Cohen v. State, 581 So. 2d 926 (Fla. 3d DCA 1991); see also Caracciolo v.
McDonough, 456 F. Supp. 2d 1240 (S.D. Fla. 2006). Before she was convicted,
Zuccarello informed law enforcement that he and two others were hired by Joyce
Cohen to murder her husband.
-8-
(2) a memo from the Dade County Jail in which a corporal stated that Zuccarello
routinely misbehaved and would not be punished because the State Attorney’s
Office would intercede on his behalf, along with incident reports documenting
such misbehavior. Rivera also alleged that newspaper articles published in 1998
indicated that Zuccarello testified in numerous cases, and his testimony in at least
two murder cases, including the Cohen homicide, was false. Rivera contended that
had he known the extent of Zuccarello’s involvement with police, he could have
impeached Zuccarello’s testimony, would have scrutinized Zuccarello’s records to
discover further impeachment evidence, and could have discovered whether
Zuccarello was acting as an agent for the State.
Rivera also alleged that his initial postconviction counsel exercised due
diligence with regard to these claims. The initial postconviction proceedings
conducted before the circuit court occurred from approximately 1991-1995.6 At
the time, the records repository had not yet been established. During the majority
of his initial postconviction proceedings, Rivera was represented by Judith
Dougherty and Haroun Shabazz. Dougherty was replaced by Scott Braden in
December 1994. Rivera’s amended initial postconviction motion was filed on
6. The final amended postconviction motion was filed in 1995, and the
evidentiary hearing for the motion was held in 1995. This Court issued its opinion
in Rivera II in 1998, in which it remanded the case on the issue of effectiveness of
penalty phase counsel. The opinion in Rivera III was issued in 2003.
-9-
January 3, 1995. With respect to the successive postconviction motion, it was
initially filed on October 1, 1999, at which time Rivera was represented by Melissa
Donohoe and Suzanne Keffer. Martin McClain, Rivera’s current counsel, replaced
Donohoe as first chair in approximately the fall of 2001, and Keffer remained as
second chair.
Evidentiary Hearing
During the evidentiary hearing, Rivera presented the testimony of Keffer,
Braden, and McClain. He also presented the testimony of Valerie Jonas, an
attorney who provided materials to McClain that were relied on by Rivera in this
proceeding; Susan Bailey, the Assistant State Attorney who handled the initial
postconviction proceedings; Robert Rios, an officer who interrogated Rivera and
performed a polygraph examination on Zuccarello; and Edward Malavenda,
Rivera’s trial counsel.
Malavenda testified that Zuccarello was a jailhouse informant who hoped to
receive leniency for his testimony. Malavenda did not recall having Zuccarello’s
plea offer during trial, and testified that he would have cross-examined Zuccarello
with respect to the plea offer if he had it. Malavenda also did not recall various
other documents Rivera now relies on, and was unaware that Zuccarello had been
involved in a homicide.
- 10 -
Keffer and Braden testified with regard to their recollections and procedures
during their respective representations of Rivera. Keffer testified she was aware
that Zuccarello had acted as a State witness in several cases, but until newspaper
articles about Zuccarello’s testimony in other cases were published in 1998, she
did not know that his credibility was challenged, or the extent to which he received
favor from law enforcement. Braden recalled that during the initial postconviction
proceedings, an evidentiary hearing was held on a Brady/Giglio claim with respect
to jailhouse informants. He suspected a plea arrangement or offer existed, and
recalled that Zuccarello stood out because of his testimony during trial that he
received a deal in another case. Neither Braden nor Keffer recalled ever seeing
Zuccarello’s plea offer. They also did not recall seeing various other documents
Rivera relies on in this successive postconviction proceeding.
McClain testified with respect to the documents he received from Jonas.
Among those items were the affidavits of Warren Holmes, who conducted a
polygraph examination of Zuccarello, and Tony Fantigrassi, who was the Captain
of the Broward County Sheriff’s Office. Both Holmes and Captain Fantigrassi
asserted in the affidavits that Zuccarello provided false information during
homicide investigations. McClain also testified that after a newspaper article was
published in which Detective Rios indicated Rivera invoked his right to counsel
during an interrogation, McClain met with Rios and obtained both the report of
- 11 -
that interrogation and the results of a polygraph examination Rios conducted on
Zuccarello.
Assistant State Attorney Bailey testified with respect to her procedures in
responding to records requests, and various documents that she asserted were
disclosed to the defense, including the Zuccarello plea offer. She testified that
letters written by her in 1994 and sent to Rivera’s counsel documented what files
were disclosed, as well as what documents were withheld from those files. The
letters confirmed that the contents of various files, including those of Zuccarello
and his associates Jay and Scott Richitelli, were disclosed during the initial
postconviction proceedings. She testified that one of the Richitelli files included
the plea offer and a letter that referenced the plea offer. However, Bailey testified
that she did not recall certain documents being in the file of the State Attorney’s
Office, including the incident and disciplinary reports regarding Zuccarello’s
behavior in jail, and the Fantigrassi and Holmes affidavits.
Rios testified with respect to the interrogation of Rivera that he conducted in
1986. Before he arrived for the interrogation, he requested that Rivera be informed
of his rights under Miranda. Upon his arrival, Rios asked Rivera whether he had
been informed of the Miranda rights, and Rivera responded in the affirmative.
Rios did not repeat the Miranda warnings and began the interrogation, during
which Rivera stated he was not involved in Staci’s homicide. Rios testified that
- 12 -
approximately an hour and a half after the interrogation began, Rivera became
upset and stated, “I want my lawyer. I am telling you I want my lawyer, like I told
those two guys I want my lawyer and I want my lawyer.”7 Rivera also stated,
“[t]his is the same bullshit as before.” Rios testified that he stopped the
interrogation, left the room, and asked the two detectives who provided the
Miranda warnings whether Rivera had asked for an attorney. The detectives
responded that Rivera had not. Rios testified that the report documenting this
interaction was not provided to Kelly Hancock, the prosecutor of Rivera’s trial.
Rios also testified that he performed a polygraph examination of Zuccarello
in relation to the Cohen homicide. During the examination, Zuccarello provided
various accounts of the homicide, but ultimately recited a final version in which he
admitted he was present. Rivera was not mentioned at any point during the
polygraph examination.
In response, the State presented Bailey, Hancock, and Bruce Raticoff, who
was Zuccarello’s counsel. Hancock testified that Starr Peck, who Rivera informed
during a phone call that he had killed Staci, was the witness who “broke the case.”
Additionally, Hancock testified that the most damaging evidence against Rivera
was the testimony of the young girl who Rivera previously attempted to molest and
7. The Rios report indicates that Rivera yelled, “you can’t hold me here any
longer, I want my [l]awyer now.”
- 13 -
strangle. Hancock also testified that he did not promise Zuccarello anything in
exchange for his testimony or provide any reward. Further, he was not a party to
any of the conditions in the plea agreement, and was not even aware of the plea
during the prosecution of Rivera.
Raticoff testified that the linchpin for the plea deal between Zuccarello and
the State was the information Zuccarello provided regarding the Cohen homicide.
He testified that to his knowledge, Zuccarello’s testimony against Rivera was not
contemplated by the plea, and Zuccarello was not a CI. Raticoff also testified that
he did not draft the plea offer, and did not know the extent or content of the
conversations between Zuccarello and law enforcement.
The postconviction court subsequently denied the remanded claims
presented in the successive motion as procedurally barred because Rivera had not
established due diligence. The postconviction court also concluded that the Brady
and Giglio claims were without merit, and the ineffective assistance of counsel
claim was insufficiently pled. Finally, the postconviction court ruled that the
newly discovered evidence was not of such a nature that it would probably produce
an acquittal in a retrial, even when considered together with all admissible
evidence presented during the various postconviction proceedings.
ANALYSIS
Due Diligence
- 14 -
In a successive rule 3.850 motion, a defendant must establish that the facts
for any claims raised could not have been discovered earlier through the exercise
of due diligence. This Court has explained:
A second or successive motion for postconviction relief can be denied
on the ground that it is an abuse of process if there is no reason for
failing to raise the issues in the previous motion. See Pope v. State,
702 So. 2d 221, 223 (Fla. 1997). Although claims that could have
been raised in a prior postconviction motion are procedurally barred,
this Court has held that a defendant may file successive
postconviction relief motions that are based on newly discovered
evidence. See White v. State, 664 So. 2d 242, 244 (Fla. 1995). In
order to overcome a procedural bar, a defendant must show that the
newly discovered facts could not have been discovered with due
diligence by collateral counsel and raised in an initial rule 3.850
motion.
Owen v. Crosby, 854 So. 2d 182, 187 (Fla. 2003).
With respect to due diligence, before remanding Rivera’s claims in Rivera
IV for an evidentiary hearing, this Court stated:
Rivera alleges that he did not have the plea offer to Zuccarello or
other key State documents at the time of trial or during the prior
postconviction proceedings. Since no evidentiary hearing has been
held, we must accept these allegations as true to the extent they are
not refuted by the record. See Peede v. State, 748 So. 2d 253, 257
(Fla. 1999).
....
While the State alleges that it complied with Rivera’s requests, the
records of the prior proceedings do not clearly establish or identify
what materials were turned over to Rivera. In fact, certain materials
concerning Zuccarello appear to have been withheld. The records
from the first postconviction proceedings suggest that Rivera’s efforts
to discover information about Zuccarello were repeatedly avoided by
the State through its limited responses to public records requests.
- 15 -
Based on the record before us, the State has not sufficiently
demonstrated that these claims are procedurally barred as successive.
995 So. 2d at 195-96 (emphasis supplied). Rivera contends this language indicates
that the burden is on the State to establish which specific documents were actually
received by collateral counsel. We disagree. In a successive postconviction
motion, it is incumbent on the defendant to demonstrate that his claims could not
have been raised in the initial postconviction motion through the exercise of due
diligence. See Zeigler v. State, 632 So. 2d 48, 51 (Fla. 1993) (“Th[e procedural]
bar can be overcome if the movant can show that the grounds asserted were not
known and could not have been known to him at the time of the earlier motions.”
(emphasis supplied)). In contrast to this appeal, no evidentiary hearing had been
conducted prior to our decision in Rivera IV. 995 So. 2d at 197 n.2 (“Although
Rivera’s motion was initially filed under rule 3.850, our current rule 3.851 . . .
articulates this Court’s long-time policy establishing a presumption in favor of
holding evidentiary hearings.”).
During the evidentiary hearing, Rivera presented the testimony of various
witnesses to establish what documents were not disclosed. Of those witnesses,
Braden was the only one who represented Rivera before the circuit court during his
initial postconviction proceedings, and he began his representation in December
1994, shortly before the final amended rule 3.850 motion was filed on January 3,
1995. In response, the State presented the testimony of Bailey, who responded to
- 16 -
the public records requests made during the initial postconviction proceedings.
Bailey testified with respect to letters she sent to Judith Dougherty, who
represented Rivera prior to Braden, that documented the names of files disclosed to
Rivera, as well as the type of material that was withheld as exempt. After hearing
the conflicting testimony regarding what documents were disclosed, the
postconviction court found that Rivera did not establish due diligence. We review
the factual findings of the postconviction court for competent, substantial evidence.
Cf. Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997).
Rivera’s claims relate to various documents presented during the evidentiary
hearing, including: (1) the Zuccarello plea offer; (2) Rios’s report of the
interrogation, which indicated that Rivera requested to speak with counsel; (3) the
“prisoner receipts” regarding Zuccarello’s movements in and out of jail; (4) the
written synopsis of a conversation with Zuccarello prepared by Detective Joseph
Gross of the Miami-Dade Police Department, which refers to Zuccarello as a CI;
(5) a report regarding an interview of Zuccarello that refers to him as a CI and that
also indicates he went out on location with detectives, also authored by Detective
Gross; (6) an unnamed list that summarized the crimes Zuccarello provided
information about, which refers to Zuccarello as a CI;8 (7) a memo stating that
8. Rivera asserts in his initial brief that all three documents were written by
Detective Gross. However, nothing on the document indicates who wrote it, or the
actual name of the individual referred to as the CI. It appears that during the
- 17 -
Zuccarello acted above the law while in jail because he could request intervention
by the state attorney handling his case; and (8) several incident reports regarding
Zuccarello’s behavior in jail, as well as a corresponding disciplinary report for one
incident.9 We conclude that Rivera has failed to establish due diligence by counsel
with respect to these documents, and therefore the claims based on these
documents are procedurally barred. See Owen, 854 So. 2d at 187.
Rivera asserts that the postconviction court failed to assess diligence from
the perspective of counsel during the initial postconviction proceedings, contrary to
the holding of this Court in Waterhouse v. State, 82 So. 3d 84 (Fla. 2012). In
Waterhouse, both trial and postconviction counsel relied on a police report that
stated a witness did not remember when the defendant or the victim left a lounge
on the night of the murder. Id. at 102. Counsel did not contact the witness because
of this report, but the witness later stated that the report did not accurately reflect
proceedings below, this document was considered together with the document
prepared by Detective Gross that reflected a synopsis of his conversation with
Zuccarello.
9. Rivera alleged below that he exercised diligence with respect to two
polygraph reports. However, although he includes the testimony regarding these
reports in the facts section of his initial brief, Rivera does not present any specific
arguments as to these documents under the diligence, Brady, or Giglio challenges.
Accordingly, any claim with respect to the polygraph reports has been waived. We
also note that the polygraph reports would not have been admissible during trial
without the consent of the State. See Walsh v. State, 418 So. 2d 1000, 1002 (Fla.
1982).
- 18 -
the information he provided to the police. Id. at 90. The State asserted that
counsel was not diligent because the reference to the witness in the police report
provided notice that the individual was a potential witness. Id. This Court held
that counsel is permitted to rely on the veracity of a police report, and due
diligence is met if (1) a witness swears in an affidavit that he or she spoke to police
about the crime, but the report ultimately contained inaccurate or false information,
and (2) counsel swears that he or she relied on the veracity of the report and did not
contact the witness because the report indicated the witness could not provide any
pertinent information. Id. at 104. The Court explained that
[t]o place the onus of verifying every aspect of an unambiguous police
report on defense or collateral counsel would not only create a
substantial amount of work in a capital case, but also could be viewed
as downplaying the seriousness of allegedly false police reports.
Id. at 103. However, this case is not comparable to Waterhouse because Rivera’s
counsel during the initial postconviction proceedings did not rely on any reports
that contained incorrect information, but rather were either in possession, or
through the exercise of due diligence should have been in possession, of the
information now relied on by Rivera during the relevant time period.
Similarly, Rivera’s reliance on Lightbourne v. State, 742 So. 2d 238 (Fla.
1999), is misplaced. In Lightbourne, counsel testified they diligently searched for
a witness during a prior proceeding. Id. at 245-46. The State asserted that a search
of the National Crime Information Center (NCIC) would have revealed the
- 19 -
location of the witness. Id. at 246. This Court noted that whether counsel was
entitled to NCIC records was inconclusive in the record, and the State had asserted
in another case that NCIC records were not available through a public records
request. Id. The Court held that the testimony of the witness was not procedurally
barred in the successive motion for postconviction relief. Id. However, here,
unlike in Lightbourne, Rivera has not established that the documents relied on in
this motion were unavailable to counsel during the initial postconviction
proceedings. Further, the State below presented competent, substantial evidence
that the documents, and information that reasonably should have led to the
discovery of the documents, were disclosed to Rivera’s initial postconviction
counsel.
With respect to the plea offer, Bailey testified it was disclosed to Rivera in
multiple files:
I did not withhold it. It is in the State’s file. Our copy company, we
haven’t had any problems. It is there now. They didn’t insert it there.
So sure, it’s sure possible that that was the one document they failed
to photocopy. But it is in, I believe it is in one of the Zuccarello files
and one of the [Richitelli] cases, as well as the PSI [presentence
investigation] and Zuccarello’s court file.
She also testified that nothing was withheld from one of the files that included the
plea offer:
This is, the original [plea offer] is located in that file. . . . As I have
indicated, nothing was withheld from that file. That document was
- 20 -
absolutely sent within that case file to Ms. Dougherty and her
investigator.
This constitutes competent, substantial evidence that supports the finding of the
postconviction court that Rivera was in possession of the plea offer during his
initial postconviction proceedings.
With respect to the documents Rivera relies on to assert Zuccarello was a CI
or received undisclosed benefits from the State, including the prisoner receipts and
the jail records, Rivera’s initial postconviction counsel also possessed sufficient
information to raise this claim. Indeed, during the initial postconviction
proceedings, Rivera alleged that the “jailhouse snitches” who testified during his
trial were offered leniency in exchange for their testimony, and specifically that
Zuccarello acted as a professional informant. Moreover, both Keffer and McClain
admitted during the evidentiary hearing that they were aware Zuccarello testified in
various other cases for the State, and the State presented evidence that was
disclosed to Rivera indicating Zuccarello was a witness in various cases.
Additionally, during the evidentiary hearing, the State presented evidence
that the Jay Richitelli file included a letter in which the assistant state attorney
wrote to counsel for Richitelli, “I know of no confidential informant in your
client’s case; at the time of the report, Mr. Zuccarello was referred to as an
informant, but that is not now the case.” The State also presented evidence that a
deposition of a Miami-Dade Police Department officer was disclosed that
- 21 -
discussed efforts by Zuccarello to negotiate with law enforcement. For example,
the officer stated in the deposition that Zuccarello
was not going to be completely—he was not going to lie to us, but
that he was going to hold some aces in his pocket until—at that point,
he didn’t have a deal, a firm deal, so he was going to hold things back,
that he was going to wait and see what kind of deal we offered him,
and then he was going to provide us with other things and see if he
couldn’t get a better deal. . . . He talked—there’s something like
twenty-nine different cases. . . . Just about every case that exists, you
know, he talked about.
The officer also stated during the deposition, “[i]t was an ongoing negotiation and I
don’t know when he got his plea.” Thus, with regard to Zuccarello’s involvement
with law enforcement, this information was available to postconviction counsel,
and Rivera has failed to establish due diligence.
With respect to the Rios interrogation report, Rios interrogated Rivera
during the investigation, and both trial and initial postconviction counsel were
aware of this interrogation. Additionally, Rivera’s initial postconviction counsel
subpoenaed Rios, but released him from the subpoena without questioning.
Simply questioning Rios before trial or in 1994 would have led to the information
on which the current claim is based. Thus, we conclude Rivera failed to establish
due diligence with respect to this claim.
Although we conclude Rivera has failed to establish due diligence with
respect to the claims raised in his successive postconviction motion, we also
address the merits of these claims and conclude that Rivera is not entitled to relief.
- 22 -
Giglio
To establish a claim for relief under Giglio, the defendant must demonstrate
that (1) the prosecutor either presented or failed to correct false testimony, (2) the
prosecutor knew the testimony was false, and (3) the evidence was material. See
Jones v. State, 998 So. 2d 573, 580 (Fla. 2008). If the defendant establishes the
first two prongs, then the evidence is deemed material if there is any reasonable
possibility that it could have affected the verdict, and the State bears the burden of
proving the false testimony was not material by demonstrating it was harmless
beyond a reasonable doubt. Id. In reviewing Giglio claims, we employ a mixed
standard of review under which findings of fact are reviewed for competent,
substantial evidence, and whether the facts are sufficient to establish each element
of the test is reviewed de novo. Id.
Rivera’s Giglio claim relates to the Zuccarello plea offer and his alleged
status as a CI. During Rivera’s trial, Zuccarello testified that he notified law
enforcement of inculpatory statements by Rivera because he believed what Rivera
did “was a sick act.” Rivera contends that Zuccarello was actually a CI who acted
as an agent of the State, and was required to cooperate with law enforcement
- 23 -
against Rivera pursuant to a plea offer he accepted.10 In pertinent part, the plea
offer states:
III. In return for the considerations shown above, the defendant will
continue to cooperate with: Florida Department of Law Enforcement
(lead agent: Steve Emerson); Broward Sheriff’s Office (detectives
Presley, Argentine, Sgt. Carney); Ft. Lauderdale Police Department
(detective Pott); [ASAs] Lazarus and Pyers, and their investigators;
and other law [enforcement] offices.
The defendant will, in his cooperation, be giving statements, which
will be tested by polygraph as to their veracity; the defendant will
further agree to testify at all proceedings in which he is subpoenaed[,]
and the defendant will testify honestly.
IV. In return for the above considerations, the defendant will not be
charged with any additional cases in Broward [C]ounty in which he
may have participated, EXCEPT: any cases in which injuries to any
person resulted will be examined on a case-by-case basis, and a filing
decision made accordingly. Any participation in any HOMICIDE
case will be handled separate and apart from this agreement, by
Assistant State Attorneys in the Homicide division.
....
VI. At time of sentencing, it will be requested by the State that such
proceedings be held in chambers, at which time the State will bring
forward all law enforcement personnel familiar with the cases and the
efforts of the defendant for the Court’s consideration in sentencing.
10. During the evidentiary hearing, Rivera also presented a letter written by
Zuccarello that Rivera asserted was evidence Zuccarello attempted to befriend him
to obtain information for law enforcement. In the letter, Zuccarello referred to
Rivera as “buddy,” and he signed the letter as “your friend Frank.” Trial counsel
Malavenda did not recall whether he had previously seen the letter.
- 24 -
During the evidentiary hearing, the State presented Bruce Raticoff, who
represented Zuccarello when the plea offer was extended. Raticoff testified that
his understanding of the plea deal was that Zuccarello would cooperate with any
and all law enforcement officers, predominantly in the Cohen homicide, and
provide information regarding his and his codefendants’ participation in other
home invasions. To Raticoff’s knowledge, the paragraph that required Zuccarello
to continue to cooperate with law enforcement did not pertain to his involvement in
Rivera’s case. Indeed, Raticoff did not recall any mention of Rivera during his
discussions of the deal with Zuccarello. Additionally, when asked whether any
preferential treatment Zuccarello received in jail had anything to do with the
Rivera case, Raticoff testified it did not. Although Raticoff testified that he was
not aware of the “nuts and bolts” of the deal, and was deliberately unaware of what
Zuccarello discussed with law enforcement, he consistently testified that he did not
understand the plea deal to include the testimony against Rivera.
With respect to timing, the plea was entered into on June 12, 1986, and
Zuccarello was sentenced on March 13, 1987. Thus, both of these events preceded
Rivera’s trial, which occurred in April 1987. A motion to mitigate sentence filed
by Zuccarello was granted on May 12, 1987. Zuccarello testified during Rivera’s
trial that although nothing was promised to him for his testimony against Rivera,
he hoped that it would be considered with respect to the motion.
- 25 -
During the evidentiary hearing, the State also presented Kelly Hancock, who
prosecuted Rivera. Hancock testified that he was not a party to any of the
conditions in the plea agreement, Zuccarello did not cooperate with him in
exchange for more lenient treatment, and he was not aware of the plea during his
prosecution of Rivera. Hancock also did not recall the plea offer, but testified that
he had an open-file policy and if the plea was in the file, it would have been
available to the defense. Although Zuccarello contacted Hancock after Rivera’s
trial regarding an incentive program, and Hancock wrote a letter requesting that
Zuccarello be placed in the program, Hancock asserted that this was not a reward
for the testimony against Rivera.
The postconviction court found that the plea offer did not pertain to
Zuccarello’s testimony against Rivera. This finding is supported by competent,
substantial evidence. Raticoff repeatedly testified that the purpose of the plea offer
was to secure Zuccarello’s cooperation with respect to home invasion robberies
and the Cohen homicide, and did not encompass the testimony in this case.
Accordingly, the record below supports a conclusion that Zuccarello did not falsely
testify when he stated he received no deal or promise in return for his testimony
against Rivera, and Rivera has failed to demonstrate a Giglio violation based on
the plea agreement. See Wyatt v. State, 71 So. 3d 86, 107 (Fla. 2011).
- 26 -
Rivera also alleges a Giglio violation based on three documents that refer to
Zuccarello as a CI, and four prisoner receipts tracking his release from jail into the
custody of various law enforcement officers. With respect to the CI documents,
the synopsis of a conversation written by Detective Gross states, in relevant part:
On Friday, April 4, 1986 one FRANK ZUCCARELLO
(hereinafter referred to as the CI for the sake of brevity) was
interviewed by this writer [and three other officers] about an
organized group that has committed a large number of home invasion
robberies (HIR hereinafter).
The first portion of the conversation was held in the robbery
office and the second portion of the conversation was held on location
as the CI pointed out various locations involved in the activity.
(Emphasis supplied.) Another report prepared by Detective Gross relates to the
April 18, 1986, interview with Zuccarello concerning various home invasion
robberies. This interview also occurred both at the robbery office and on location.
The first paragraph of the report states: “1. Frank (alternatively referred herein as
the CI) . . . .” The final, unnamed document lists information purportedly provided
by Zuccarello regarding a number of crimes, not including Rivera’s case, and
throughout the document, that individual is referred to as “CI” or “the CI.” With
respect to the prisoner receipts, they indicate that Zuccarello was taken out of the
jail on April 1, 1986; April 4, 1986; April 17, 1986 (specifically into the custody of
Detective Argentine); and July 17, 1986 (into the custody of Detective Amabile).11
11. Detective Argentine was one of the law enforcement personnel with
whom the plea offer required Zuccarello to cooperate. Detective Amabile was one
- 27 -
However, Raticoff testified that, to his knowledge, “Zuccarello was not, is
not, never has been a confidential informant.” He also testified that Zuccarello was
neither documented as, nor acted as, a CI. Additionally, Raticoff testified that he
would have taken exception to police considering Zuccarello or using him as a CI
without first consulting his attorney, i.e., Raticoff.
The postconviction court found that Zuccarello was not a CI, and this
finding is supported by competent, substantial evidence. Not only did Zuccarello’s
attorney testify he had no knowledge of Zuccarello acting as a CI, one of the
documents explicitly states that Zuccarello was referred to as a CI simply for
brevity. Accordingly, because Rivera has failed to establish that Zuccarello was a
CI, he has failed to establish a Giglio violation. See Wyatt, 71 So. 3d at 107.
Brady
To establish a Brady violation, the defendant must show that (1) favorable
impeachment or exculpatory evidence, (2) was willfully or inadvertently
suppressed by the State, and (3) the evidence was material, resulting in prejudice to
the defendant. Franqui v. State, 59 So. 3d 82, 101 (Fla. 2011). To establish the
materiality prong, a defendant must demonstrate a reasonable probability that, had
of the officers who provided Rivera with the Miranda warnings before the Rios
interrogation, and was otherwise involved in the investigation into the death of
Staci. In his testimony during trial, Zuccarello stated that he spoke with Detective
Argentine concerning statements Rivera made to him. He later testified that he
told Detective Amabile about these statements.
- 28 -
the evidence been disclosed to the defense, the result of the proceeding would have
been different. Id. In other words, evidence is material under Brady only if it
undermines confidence in the verdict. Id. at 102.
Rivera alleges Brady violations on several documents that relate to
Zuccarello’s relationship with law enforcement, including the plea offer, two12
documents that describe Zuccarello as a CI, and prisoner receipts. However, we
conclude that even if Rivera could overcome the procedural bar—which he
cannot—these documents are not material.13 Because the plea offer did not
12. Rivera presented during the evidentiary hearing a third document that
referred to Zuccarello as a CI, the unnamed document relied on in the Giglio claim
that contained a list of crimes. However, he presents no argument under the Brady
claim in relation to this third document, and, therefore, any Brady claim based on
this document is waived. Moreover, for the same reason the claim based on the
other CI documents is without merit, any claim based on this document would
similarly be without merit.
13. Additionally, in his amended successive postconviction motion, Rivera
alleged Brady violations based on a memorandum and incident reports that refer to
Zuccarello’s behavior in jail. However, these documents are referenced only in the
facts and due diligence portions of Rivera’s initial brief, and not in the Brady claim
appealed to this Court. Therefore, any claims regarding these documents have
been waived. However, we also note that a Brady claim based on these documents
would be without merit. With respect to the incident reports, these were equally
available to Rivera as they were to the State. See Stewart v. State, 801 So. 2d 59,
70 (Fla. 2001) (affirming the denial of a Brady claim based on jail records because
they were equally available to the defendant). With respect to the memorandum, it
was written after Rivera’s trial, and therefore was neither willfully nor
inadvertently suppressed. Wyatt, 71 So. 3d at 103 (“Wyatt’s own experts testified
that neither the 2008 letter nor any comprehensive research uncovering the flaws in
[the comparative bullet lead analysis] existed until well after Wyatt’s trial in 1991.
- 29 -
encompass Zuccarello’s testimony against Rivera, it could be used only to
demonstrate Zuccarello had a relationship with law enforcement and was,
therefore, biased. Cf. Gorham v. State, 597 So. 2d 782, 784 (Fla. 1992) (holding
that the status of a witness as a paid confidential informant constituted Brady
material because the credibility of a witness may be attacked on the basis that the
witness has a relationship with a party, a personal obligation to a party, or is
employed by a party). Similarly, because Zuccarello was referred to as a CI
simply for the sake of brevity, and not because he actually acted as a CI, these
documents relate only to his motivation to aid law enforcement.
However, Zuccarello’s motive for testifying was explored during trial.
Zuccarello testified that he was convicted for twenty-three felonies—including
armed robbery, armed burglary, aggravated assault, home invasion, and resisting
arrest—which he pled guilty to pursuant to a plea deal that provided for only a
seven-year sentence.14 He also stated that prior to testifying, he filed a motion to
mitigate his sentence, which was still pending at that time. Zuccarello sought to
reduce his sentence to a term of five years’ incarceration, and stated that he hoped
his testimony against Rivera would benefit his motion to mitigate. Zuccarello
Accordingly, the State could not have willfully or inadvertently suppressed such
information.”).
14. Zuccarello received concurrent sentences in both Miami-Dade and
Broward Counties.
- 30 -
expected his total time of incarceration for a five-year sentence would be
approximately two and a half years, and he had already served over one year.
Further, one of the detectives Zuccarello spoke with testified that he may have told
Zuccarello that he might speak to a judge regarding Zuccarello’s cooperation in the
Rivera case.
Additionally, during trial, John Meham, another inmate at the Broward
County Jail, testified that Zuccarello and another jailhouse informant who testified
against Rivera, William Moyer, attempted to gather information about Rivera to
provide to law enforcement. Specifically, Meham testified that he “asked [Moyer]
if [Rivera] ever told [Moyer] anything. [Moyer] said no, but Frank Zuccarello, and
[another inmate], they got together, I guess, corroborated and was making a deal
with the State for what the State wanted to hear to come in here.” Meham also
testified that Rivera did not speak to anyone about his case.
Thus, Zuccarello’s testimony was significantly impeached during trial. The
jury was aware that he entered into a plea agreement, did not expect to be
incarcerated for more than two and a half years despite the large number of serious
felony convictions, and hoped to receive a benefit from his testimony, although
none was promised. Additionally, Rivera presented evidence during trial to
suggest law enforcement solicited information from the jailhouse informants. We
conclude that evidence of the actual plea offer and other documents Rivera alleges
- 31 -
would have impeached Zuccarello and law enforcement would have been largely
cumulative to the existing impeachment, and therefore Rivera has failed to
establish that it is material. See Overton v. State, 976 So. 2d 536, 563 (Fla. 2007).
Moreover, as described under the claim regarding newly discovered DNA
evidence, the evidence of guilt against Rivera was simply overwhelming, and these
documents do not undermine our confidence in the outcome of Rivera’s trial.
Franqui, 59 So. 3d at 102.
Rivera also alleges a Brady violation based on the Rios report. However, he
fails to establish how the report is material. The postconviction court found that all
interrogation ceased once Rivera invoked his right to counsel, and this finding is
supported by competent, substantial evidence. Rios did not testify during Rivera’s
trial, nor were any statements made by Rivera during the Rios interrogation
presented during trial. Thus, the report does not undermine confidence in the
outcome of the trial.
Rivera alternatively pleads his Brady claim as an ineffective assistance of
trial counsel claim.15 Although we disagree with the ruling of the postconviction
court that the ineffective assistance of counsel claim was insufficiently pled, we
conclude the claim is nonetheless procedurally barred. See Pope, 702 So. 2d at
15. To the extent that Rivera claims ineffective assistance of postconviction
counsel, such a claim is not cognizable. See Tompkins v. State, 994 So. 2d 1072,
1088 (Fla. 2008).
- 32 -
223. Moreover, the prejudice prong of an ineffective assistance of counsel claim
involves the same analysis as the materiality prong of a Brady claim. See Duest v.
State, 12 So. 3d 734, 744 (Fla. 2009). Because we conclude the documents Rivera
bases this claim on are not material under Brady, the ineffectiveness claim is also
without merit. See Downs v. State, 740 So. 2d 506, 513 n.10 (Fla. 1999)
(“Because we find the underlying Brady claim to be without merit, we need not
address the merits of Downs’ corresponding ineffective assistance of counsel claim
on this issue.”).
Newly Discovered DNA Evidence
This Court has explained that to succeed on a newly discovered evidence
claim, the defendant must establish that (1) the evidence was not or through the
exercise of due diligence could not have been known to the trial court, party, or
counsel during the trial, and (2) the evidence is of such a nature that it would
probably produce an acquittal on retrial. Swafford v. State, 125 So. 3d 760, 767
(Fla. 2013) (citing Jones v. State (Jones II), 709 So. 2d 512, 521 (Fla. 1998)). The
second prong is satisfied if the evidence establishes a reasonable doubt as to the
defendant’s culpability. Id. (citing Jones II, 709 So. 2d at 526). To evaluate a
newly discovered evidence claim, the trial court must consider all admissible
newly discovered evidence and weigh the evidence together with that which was
- 33 -
introduced during trial. Id. (citing Jones v. State (Jones I), 591 So. 2d 911, 915
(Fla. 1991)). The trial court must determine
whether the evidence goes to the merits of the case or whether it
constitutes impeachment evidence. The trial court should also
determine whether this evidence is cumulative to other evidence in the
case. The trial court should further consider the materiality and
relevance of the evidence and any inconsistencies in the newly
discovered evidence.
Id. (quoting Jones II, 709 So. 2d at 521). This Court reviews the postconviction
court’s findings of fact, and findings on the credibility of witnesses and the weight
of the evidence, for competent, substantial evidence. Id. (citing Green v. State, 975
So. 2d 1090, 1100 (Fla. 2008)). However, this Court reviews the application of the
law to the facts de novo. Id.
It is undisputed that the DNA test results that establish that the hair found in
Peters’s van did not belong to Staci constitute newly discovered evidence. Prior to
trial, a hair consistent with that of Staci was found in Mark Peters’s van. The hair
was relied on by the State during trial as evidence of Rivera’s guilt. Specifically,
the prosecutor remarked during opening statements that the hair found in the van
was compared with that of Staci and found to be similar. During trial, the hair
comparison expert testified that it was his “scientific opinion that the hair from the
bed of the van could be concluded as being a source from the victim, item number
five, which was the head hair sample of the victim.” Nonetheless, during opening
- 34 -
statements and the expert’s testimony, the caveat was added that such comparisons
were not definitive. Indeed, during cross-examination, the expert testified:
I would imagine if you were to go out and make a comparison on a
hair, there’s a good chance that the next guy you pick down the street
might have the same similar characteristics or you might have to go
through the whole State of Florida or Broward County to find it.
The limited value of the hair comparison was also emphasized by defense counsel
during closing statements.
Rivera asserts that the newly discovered DNA evidence, together with all
other evidence presented during trial and the postconviction proceedings, including
Mark Peters’s testimony that he was in possession of the van during the time Staci
was abducted, establishes that Rivera did not commit the murder. We disagree.
The DNA evidence simply confirms the possibility that was asserted during trial
that the hair did not belong to Staci. Notably, the evidence is not exculpatory in
nature, nor does it establish that Staci was never in contact with Rivera or in
Peters’s van. Moreover, the State presented ample evidence during trial that
Rivera committed the murder, including the testimony of two non-jailhouse
witnesses to whom Rivera confessed. Starr Peck testified that Rivera admitted to
killing Staci, and a second woman testified that Rivera told her that Staci was gone
and would not be found. Additionally, the jury heard testimony that Rivera
exposed himself to numerous girls between the ages of ten and twenty years old;
he thought about forcing young girls to have sex with him; he admitted that he
- 35 -
exposed himself to a girl on a bicycle;16 and he previously attacked a girl the same
age as Staci. Thus, we conclude the newly discovered DNA evidence is not of
such a nature that it would probably produce an acquittal on retrial, and we affirm
the denial of this claim.
CONCLUSION
Based on the foregoing, we affirm the postconviction court’s order denying
successive postconviction relief on those claims that were remanded for an
evidentiary hearing in Rivera IV.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
PARIENTE and CANADY, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Broward County,
Paul Lawrence Backman, Judge - Case No. 061986CF011716A88810
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Martin
J. McClain, Special Assistant, Capital Collateral Regional Counsel, Southern
Region, and Nicole M. Noel, Staff Attorney, Capital Collateral Regional Counsel,
Southern Region, Fort Lauderdale, Florida,
for Appellant
16. Staci was in possession of her bicycle before she was attacked. Rivera
I, 531 So. 2d at 537.
- 36 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Consiglia Terenzio,
Bureau Chief, West Palm Beach, Florida,
for Appellee
- 37 -