Michael T. Rivera v. State of Florida

Supreme Court of Florida
____________
No. SC17-1991
____________
MICHAEL T. RIVERA,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
December 20, 2018
PER CURIAM.
This case is before the Court on appeal from an order denying a motion to
vacate a sentence of death under Florida Rule of Criminal Procedure 3.851.
Because the order concerns postconviction relief from a sentence of death, this
Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida
Constitution.
FACTS AND BACKGROUND
Michael T. Rivera was convicted of first-degree murder and was sentenced
to death. Rivera v. State (Rivera I), 561 So. 2d 536, 537 (Fla. 1990). In affirming
his convictions and sentences on direct appeal, this Court set forth the pertinent
facts pertaining to Rivera’s case:
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 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.
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[n.2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
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
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.
Dr. Wright observed that the body was completely clothed,
although the jeans were unzipped and partially pulled down about the
hips, and the panties were partially torn. Dr. Wright opined that this
could be the result of the expansion of gasses during decomposition
and not sexual molestation. He was unable to determine whether she
was sexually assaulted. He discovered a bruise on the middle of the
forehead that occurred before death, but he could not testify with
certainty as to the cause. He also observed a broken fingernail on her
right hand index finger, which he could not interpret as evidence of a
struggle. Dr. Wright believed that the body was carried to the field
and dumped, and at that time Staci was either dead or unconscious.
The jury heard testimony from several of Rivera’s fellow
inmates. Frank Zuccarello testified that Rivera admitted that he had
choked another child, Jennifer Goetz, in the same way he had choked
Staci; that Rivera said he had tried to kill Jennifer 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
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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.
The jury returned a verdict of guilty as charged.
During the penalty phase, the state introduced evidence of prior
convictions.[n.3] Rivera introduced the testimony of his sisters, Elisa
and Miriam, through whom the jury learned that Rivera was himself
the victim of child molestation. Rivera’s present girlfriend testified
that she had no concerns about leaving him with her children.
Rivera’s former girlfriend was allowed to testify under an alias. She
expressed the opinion that Rivera had two personalities. Through
Michael he demonstrated a good side and through “Tony” he exposed
his dark side which compelled him to do terrible things.
[n.3] On November 6, 1986, Rivera was convicted of
attempted first-degree murder, kidnapping, aggravated
child abuse, and aggravated battery. The state conceded
that those crimes were on appeal. However, there were
other felonies involving the use or threat of violence of
which Rivera stood convicted and which were not on
appeal. They include the October 1980 crimes of
burglary with intent to commit battery and of indecent
assault on a female child under the age of fourteen.
Dr. Patsy Ceros-Livingston, a clinical psychologist, interviewed
Rivera in jail. She diagnosed Rivera as having a borderline
personality disorder, which is characterized by impulsivity, a pattern
of unstable and intense interpersonal relationships, lack of control of
anger, identity disturbance, affective instability, intolerance of being
alone, and physically self-damaging acts. The doctor also diagnosed
exhibitionism, voyeurism, and transvestism.
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Dr. Ceros-Livingston opined that Rivera acted under extreme
duress and that he had some special compulsive characteristics that
substantially impaired his capacity to appreciate the criminality of his
conduct or to conform this conduct to the requirement of the law.
The jury unanimously recommended the death penalty. The
trial judge found four aggravating circumstances,[n.4] one statutory
mitigating circumstance,[n.5] and no nonstatutory mitigating
circumstances.
[n.4] § 921.141(5)(b), (d), (h), (i), Fla. Stat. (1985)
(previous conviction of felony involving the threat or use
of violence; murder committed during the commission of
an enumerated felony; murder especially heinous,
atrocious, or cruel; and murder committed in a cold,
calculated, and premeditated manner[ 1]).
[n.5] § 921.141(6)(b), Fla. Stat. (1985) (defendant under
the influence of extreme mental or emotional
disturbance).
Id. at 537-38. Because Rivera did not file a petition for writ of certiorari in the
United States Supreme Court, his conviction and sentence became final on
September 22, 1990. See Fla. R. Crim. P. 3.851(d) (“(1) . . . For the purposes of
this rule, a judgment is final: (A) on the expiration of the time permitted to file in
the United States Supreme Court a petition for writ of certiorari seeking review of
the Supreme Court of Florida decision affirming a judgment and sentence of death
(90 days after the opinion becomes final); . . . .”).
1. We later struck the cold, calculated, and premeditated aggravating factor
on direct appeal. Rivera I, 561 So. 2d at 540.
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We affirmed the denial of Rivera’s initial motion for postconviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.850 on all claims but that of
the penalty phase effectiveness of counsel, which we reversed and remanded for an
evidentiary hearing. Rivera v. State (Rivera II), 717 So. 2d 477, 479 (Fla. 1998).
After conducting an evidentiary hearing, the postconviction court again denied
relief. Rivera v. State (Rivera III), 859 So. 2d 495, 499 (Fla. 2003). Rivera
appealed that denial to this Court and filed a petition for writ of habeas corpus. Id.We affirmed the postconviction court’s denial of relief and denied the petition for
writ of habeas corpus. Id.Rivera filed his first successive motion for postconviction relief pursuant to
rule 3.850, which the postconviction court denied. Rivera v. State (Rivera IV), 995
So. 2d 191, 192 (Fla. 2008). This Court remanded for an evidentiary hearing on
Rivera’s newly discovered evidence claim and on his claims of Brady2 and Giglio 3
violations, and affirmed the postconviction court’s denial on all other claims. Id.Following the evidentiary hearing, the postconviction court again denied Rivera’s
claims. Rivera v. State (Rivera V), 187 So. 3d 822, 828 (Fla. 2015). On appeal
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).
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from the postconviction court’s denial, we affirmed the denial of relief on the
claims that were remanded for an evidentiary hearing. Id. at 841.
After our release of Hurst v. State, 202 So. 3d 40 (Fla. 2016), Rivera filed a
second successive motion for postconviction relief, which the postconviction court
struck pursuant to the State’s motion. Rivera then filed an amended second
successive motion for postconviction relief, which the postconviction court again
denied. Rivera appealed that denial to this Court. On November 21, 2017, we
issued an order to show cause why the postconviction court’s order should not be
affirmed in light of our decision in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017),
to which both Rivera and the State responded. Rivera v. State, No. SC17-1991
(Fla. order filed Nov. 21, 2017). Then, on February 22, 2018, after reviewing the
responses to the order to show cause, we directed further briefing on non-Hurst
related issues. Rivera v. State, No. SC17-1991 (Fla. order filed Feb. 22, 2018).
ANALYSIS
I.
In his first claim, Rivera contends that the postconviction court erred in
denying his motion for enlargement of the page limitation. Rivera also contends
that the postconviction court violated his due process rights by failing to hold a
case management conference, pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993),
before ruling on his second successive motion for postconviction relief. We
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conclude that Rivera’s argument with regard to the page limitation is meritless.
Moreover, in accordance with our extensive precedent on the failure to hold Huff
hearings for successive motions for postconviction relief, we further conclude that
any error here was harmless.
A.
Rivera argues that the postconviction court’s denial of his motion to exceed
page limitation deprived him of equal protection, asserting in part that other capital
defendants were allowed to file successive postconviction motions in excess of
twenty-five pages. In doing so, he takes issue with rule 3.851 itself as much as
with the postconviction court’s denial of that motion. See Initial Br. 11 (“There is
no page limitation on successive 3.850 motions. It defies logic to impose a page
limitation in a capital case when one is not imposed in a non-capital case.”).
We review discretionary decisions made by trial judges under an abuse of
discretion standard. Bryant v. State, 901 So. 2d 810, 817 (Fla. 2005). “When there
is sufficient evidence to support the conclusion of the lower court, we may not
substitute our judgment for that of the trial judge.” Mason v. State, 597 So. 2d 776,
779 (Fla. 1992). “If reasonable men could differ as to the propriety of the action
taken by the trial court, then the action is not unreasonable and there can be no
finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203
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(Fla. 1980). Thus, we examine the postconviction court’s denial of Rivera’s
motion to exceed the page limitation under an abuse of discretion standard.
Florida Rule of Criminal Procedure 3.851(e)(2) states that a successive
motion for postconviction relief shall not exceed twenty-five pages. Fla. R. Crim.
P. 3.851(e)(2). Here, Rivera filed a motion to exceed the page limitation, which
requested permission to file a twenty-nine page successive motion for
postconviction relief, stating that a page enlargement was necessary because “[t]he
procedural, factual, and legal aspects of Rivera’s Hurst claim are complex,
particularly given the size of the record in this case and its lengthy procedural
history.” The State objected to the motion, arguing that, because Hurst is
inapplicable to Rivera’s case, there was no good cause to exceed the page limit,
which the State claimed would actually be in excess of twenty-nine pages due to
the use of smaller font size on twenty of those pages. The postconviction court
ultimately denied Rivera’s motion.
Given that Rivera’s conviction and death sentence became final well before
Ring v. Arizona, 536 U.S. 584 (2002), was decided, and that all of his claims in the
instant successive postconviction motion centered on his alleged entitlement to
Hurst relief, we conclude that it was reasonable for the postconviction court to
deny his motion to exceed page limit. Thus, the lower court’s denial does not
constitute an abuse of discretion.
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B.
Next, Rivera asserts that the postconviction court’s failure to hold a case
management conference denied him due process. In Huff, we stated:
Because of the severity of punishment at issue in a death
penalty postconviction case, we have determined that henceforth the
judge must allow the attorneys the opportunity to appear before the
court and be heard on an initial 3.850 motion. This does not mean
that the judge must conduct an evidentiary hearing in all death penalty
postconviction cases. Instead, the hearing before the judge is for the
purpose of determining whether an evidentiary hearing is required and
to hear legal argument relating to the motion.
622 So. 2d at 983. This Huff hearing requirement was later expanded to include
rule 3.851 motions. See Fla. R. Crim. P. 3.851(f)(5)(B).
Nevertheless, in Groover v. State, 703 So. 2d 1035 (Fla. 1997), we
elaborated that our holding in Huff was limited to initial death penalty
postconviction motions. Id. at 1038. We noted that, although Huff hearings are
preferred in order to allow the parties to present their legal arguments, one was not
required in Groover’s case because his successive postconviction motion was
without merit. Id. “[E]ven if a Huff hearing had been required in [Groover], the
court’s failure to do so would be harmless as no evidentiary hearing was required
and relief was not warranted on the motion.” Id. Moreover, we have repeatedly
upheld our holding in Groover with regard to Huff hearings on legally insufficient
or meritless successive postconviction motions. See Marek v. State, 14 So. 3d 985,
999 (Fla. 2009) (holding that the failure to hold a Huff hearing on Marek’s fourth
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successive postconviction motion that was legally insufficient on its face and
without merit was harmless, stating that “[t]he failure to hold a hearing on a
successive postconviction motion that is legally insufficient on its face is harmless
error” (citing Davis v. State, 736 So. 2d 1156, 1159 n.1 (Fla. 1999); Groover, 703
So. 2d at 1038)); Davis, 736 So. 2d at 1159 n.1 (“In view of the fact that the instant
motion is successive and legally insufficient on its face, we find this error
harmless.” (citing Groover, 703 So. 2d at 1038)); see also Mordenti v. State, 711
So. 2d 30, 32 (Fla. 1998) (holding a failure to hold a Huff hearing on Groover’s
fourth successive postconviction motion was harmless error whereas the same lack
of Huff hearing on Mordenti’s first motion for postconviction relief was not).
Therefore, we have repeatedly emphasized that the failure to hold a Huff hearing
on legally insufficient or meritless successive postconviction motions is harmless
error.
Here, the postconviction motion at issue is Rivera’s second successive
postconviction motion. Moreover, as discussed below, the postconviction court
below properly found that Rivera’s successive postconviction motion was without
merit. Rivera’s jury unanimously recommended a sentence of death, and his case
became final on September 22, 1990—well before Ring. The instant successive
motion for postconviction relief is entirely based on Rivera’s supposed entitlement
to relief under Hurst. Because Rivera’s conviction and sentence were final long
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before Ring was issued, our precedent makes it clear that he is not entitled to any
Hurst relief. See, e.g., Hitchcock, 226 So. 3d at 217 (“We have consistently
applied our decision in Asay, denying the retroactive application of Hurst v.
Florida [136 S. Ct. 616 (2016)] as interpreted in Hurst v. State to defendants
whose death sentences were final when the Supreme Court decided Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed. 2d 556 (2002).” (citing Zack v.
State, 228 So. 3d 41 (Fla. 2017); Marshall v. Jones, 226 So. 3d 211 (Fla. 2017);
Lambrix v. State, 217 So. 3d 977 (Fla. 2017); Willacy v. Jones, No. SC16-497,
2017 WL 1033679 (Fla. Mar. 17, 2017); Bogle v. State, 213 So. 3d 833 (Fla.
2017); Gaskin v. State, 218 So. 3d 399 (Fla. 2017))). Therefore, although Huff
hearings are preferred on all postconviction motions, we conclude that the failure
to hold a case management hearing in the instant proceeding was harmless. See,
e.g., Groover, 703 So. 2d at 1038. Thus, this claim of Rivera’s successive motion
for postconviction relief fails.
II.
In his second claim, Rivera attempts to circumvent our decision on the
retroactivity of Hurst by dubbing the death penalty statute as substantive, rather
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than procedural. In doing so, Rivera cites to Fiore4 and In re Winship 5 in support
of his argument that Hurst relief should be applied retroactively because the
substantive aggravators were present in the statute since its creation, thus
warranting full retroactive application of Hurst. These arguments, however, are
“nothing more than arguments that Hurst v. State should be applied retroactively to
[Rivera’s] sentence, which became final prior to Ring. As such, these arguments
were rejected when [this Court] decided Asay.” Hitchcock, 226 So. 3d at 217.
Therefore, we conclude that this claim is meritless, based on our clear and repeated
precedent on the retroactive application of Hurst.
As we recently explained in Foster v. State, No. SC18-860 (Fla. Dec. 13,
2018):
[T]he Hurst penalty phase findings are not elements of the capital
felony of first-degree murder. Rather, they are findings required of a
jury: (1) before the court can impose the death penalty for first-degree
murder, and (2) only after a conviction or adjudication of guilt for
first-degree murder has occurred. Thus, Foster’s jury did find all of
the elements necessary to convict him of the capital felony of first-
degree murder—during the guilt phase.
In sum, a conviction for first-degree murder, a capital felony,
solely consists of the jury having unanimously found the elements set
forth in the substantive first-degree murder statute and the relevant
jury instruction. The conviction for first-degree murder must occur
before and independently of the penalty-phase findings required by
Hurst and its related legislative enactments. The Florida Statutes
4. Fiore v. White, 531 U.S. 225 (2001).
5. In re Winship, 397 U.S. 358 (1970).
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clearly establish the elements of first-degree murder required for a
conviction, and upon conviction, the required findings in order to
sentence a defendant to the death penalty. There is no, as Foster
asserts, greater offense of “capital first-degree murder.” Foster’s
guilt-phase jury considered all of the elements necessary to convict
him of first-degree murder, a capital felony. Thus, his due process
argument fails.
Id., slip op. at 9-10. Our reasoning in Foster applies with equal force in Rivera’s
case. The jury unanimously convicted Rivera of first-degree murder during his
guilt phase trial. Rivera I, 561 So. 2d at 537. This first-degree murder conviction
is separate from the death penalty that may later be imposed after the penalty
phase—albeit a necessary prerequisite to that imposition. See § 921.141(1), Fla.
Stat. (2018). Therefore, we conclude, as we did in Foster, that Rivera’s due
process argument fails. See Foster, slip op. at 9-10.
Moreover, in Asay, we made it clear that Hurst would not be applied
retroactively to death defendants whose cases became final before Ring. 210 So.
3d at 22. Similarly, in Hitchcock, we again made it clear that Hurst would not
have retroactive application to defendants whose death sentences were final when
the Supreme Court decided Ring. 226 So. 3d at 217 (citing Zack, 228 So. 3d 41;
Marshall, 226 So. 3d 211; Lambrix, 217 So. 3d 977; Willacy, No. SC16-497, 2017
WL 1033679; Bogle, 213 So. 3d 833; Gaskin, 218 So. 3d 399). Because the crux
of Rivera’s argument is centered on this Court retroactively applying Hurst to
Rivera’s case, which became final in 1990, we conclude that this issue is meritless.
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III.
Next, Rivera attempts to revive his previously extinguished claim of newly
discovered evidence. This Court, in Rivera V, denied Rivera’s claim of newly
discovered DNA evidence relating to hair testing. 187 So. 3d at 840-41.
Therefore, we conclude that this claim is procedurally barred. Hendrix v. State,
136 So. 3d 1122, 1125 (Fla. 2014) (“Claims raised and rejected in prior
postconviction proceedings are procedurally barred from being relitigated in a
successive motion.” (citing Van Poyck v. State, 116 So. 3d 347, 362 (Fla. 2013))).
Nevertheless, even if this claim of Rivera’s successive motion for
postconviction relief is not procedurally barred, it is meritless. Rivera attempts to
argue that the requirement under Mosley v. State, 209 So. 3d 1248 (Fla. 2016), that
all post-Hurst death sentences be unanimously imposed mandates that we revisit
his 2015 newly discovered evidence claim because of the increased likelihood that
Rivera would receive a lower sentence on retrial in the post-Hurst landscape. This
contention, however, ignores the substantive reasons we set forth in Rivera V for
why Rivera’s newly discovered evidence claim failed. Specifically, we stated:
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
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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 exposed himself to a girl on
a bicycle; 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.
Rivera V, 187 So. 3d at 841 (footnote omitted); see id. (explaining that the limited
value of hair comparisons was repeatedly emphasized by the State, the State’s hair
expert, and defense counsel at trial).6 Thus, based on the extensive and significant
evidence of guilt presented at trial, it is clear that Rivera’s newly discovered
evidence claim would not produce an acquittal on retrial, even in the post-Hurst
legal landscape. See, e.g., Preston v. State, 970 So. 2d 789 (Fla. 2007) (finding
6. Given the overwhelming evidence of guilt presented at trial, the
postconviction court’s order in Rivera V also explicitly detailed numerous reasons
for the denial of Rivera’s newly discovered evidence claim, due to the unlikely
probability of receiving a lesser sentence on retrial: (1) The jury knew that the hair
found near the victim’s body did not belong to Rivera, making the additional hair
testing results cumulative; (2) the jury heard testimony that Rivera used a different
truck at the time of the murder than the van law enforcement knew about; and (3)
the jury heard testimony about Rivera’s confessions to Starr Peck, Angela Greene,
and three inmates, and about his incriminating statements to law enforcement
officers. Even in the post-Hurst death penalty scheme, we agree with the
postconviction court in Rivera V that the DNA evidence does not create a
reasonable doubt with respect to Rivera’s guilt.
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that newly discovered DNA evidence showing that hair recovered did not match
the victim would probably not produce an acquittal on retrial because the case
against the defendant was nevertheless a strong case).
IV.
Finally, Rivera asserts a bare-bones argument that seems to reiterate what
was already asserted in Issue III—namely, that the alleged newly discovered
exculpatory evidence demonstrates that the jury considered materially inaccurate
evidence, which does not comport with Eighth Amendment requirements for the
imposition of death. However, Rivera presents no legitimate or discernible
argument within the limited analysis presented in his brief as to how his death
sentence offends the Eighth Amendment. Instead, he seemingly asserts that this
Court cannot deny Rivera’s claims “simply because a case is old.” Initial Br. 31.
Therefore, as an initial matter, we conclude that this issue was insufficiently pled.
See Heath v. State, 3 So. 3d 1017, 1029 n.8 (Fla. 2009) (“Vague and conclusory
allegations on appeal are insufficient to warrant relief.” (citing Doorbal v. State,
983 So. 2d 464, 482 (Fla. 2008))); Victorino v. State, 23 So. 3d 87, 103 (Fla. 2009)
(“We have previously stated that ‘[t]he purpose of an appellate brief is to present
arguments in support of the points on appeal.’ ” (quoting Duest v. Dugger, 555 So.
2d 849, 852 (Fla. 1990))).
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Nevertheless, we also conclude that this claim fails on the merits. As
mentioned above, Rivera attempts to argue that the need for reliable death
sentences does not go away simply because a case was tried in 1986. This flawed
logic, however, ignores the fact that we considered—and rejected—Rivera’s
claims of newly discovered evidence that were raised pursuant to evolving
scientific capabilities with regard to hair sample testing. This consideration, and
the ultimate result, indicate that the reliability of Rivera’s death sentence was not
so diminished as to raise Eighth Amendment concerns. Further, as explained in
Issue III, we again conclude that the “materially inaccurate” information presented
to the jury was not of such a nature that it would produce an acquittal on retrial or
the imposition of a lesser sentence, in light of the distinct and overwhelming
evidence of Rivera’s guilt presented at trial—even post-Hurst. Therefore, we
conclude that the jury’s pre-Ring, unanimous recommendation of death is not
unreliable or in violation of the Eighth Amendment, even in light of the limited
testimony presented to the jury erroneously linking one hair sample recovered from
the van to the victim.
CONCLUSION
For the reasons set forth above, we affirm the postconviction court’s denial
of Rivera’s successive motion for postconviction relief.
It is so ordered.
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LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., and PARIENTE, J., concur in result.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
An Appeal from the Circuit Court in and for Broward County,
Paul L. Backman, Judge - Case No. 061986CF011716A88810
Neal Dupree, Capital Collateral Regional Counsel, Martin J. McClain, Special
Assistant Capital Collateral Regional Counsel, and Nicole M. Noël, Assistant
Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Ilana Mitzner,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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