Wednesday 10 October 2007

Michael Rivera - innocence - The Replybrief

http://www.oranous.com/innocence/MichaelRivera/replybriefRivera.htm


IN THE SUPREME COURT OF FLORIDA

CASE NO. 05-1873

MICHAEL RIVERA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE SEVENTEENTH JUDICIAL CIRCUIT,

IN AND FOR BROWARD COUNTY, STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR APPELLANT

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................ I

TABLE OF AUTHORITIES ....................................... iii

ARGUMENT IN REPLY ............................................ 1

ARGUMENT I

THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN DENYING

MR. RIVERA’S RULE 3.850 MOTION WITHOUT AN EVIDENTIARY

HEARING. ........................................... 1

A. Introduction .................................. 1

B. Legal Analysis................................. 3

ARGUMENT II

MR. RIVERA WAS DEPRIVED OF DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

WHEN THE PROSECUTION INTENTIONALLY PERMITTED FALSE

AND/OR MISLEADING EVIDENCE TO BE PRESENTED TO MR.

RIVERA’S JURY AND USED IT TO OBTAIN A CONVICTION.... 20

ARGUMENT III

MR. RIVERA WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

UNDER THE FOURTEENTH AMENDMENT AS WELL AS HIS RIGHTS

UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE

EITHER THE STATE FAILED TO DISCLOSE EVIDENCE WHICH WAS

MATERIAL AND EXCULPATORY IN NATURE AND/OR PRESENTED

MISLEADING EVIDENCE AND/OR DEFENSE COUNSEL

UNREASONABLY FAILED TO DISCOVER AND PRESENT

EXCULPATORY EVIDENCE AND/OR NEW EVIDENCE ESTABLISHES

MANIFEST INJUSTICE.

.................................................. 21

ARGUMENT IV

THE RESULTS OF DNA TESTING CONSTITUTE NEWLY DISCOVERED

EVIDENCE THAT ESTABLISH MR. RIVERA’S ENTITLEMENT TO A

NEW TRIAL. ........................................ 24

ARGUMENT V

MR. RIVERA WAS DENIED A FAIR TRIAL AND POSTCONVICTION

PROCEEDING DUE TO JUDGE FERRIS’S BIAS AND

PREDETERMINATION OF THE ISSUES CONTRARY TO THE SIXTH,

EIGHTH AND FOURTEENTH AMENDMENTS. .................. 26

ARGUMENT VI

MR. RIVERA WAS DENIED DUE PROCESS WHEN HE LEARNED THAT

AN EVIDENTIARY HEARING HAD BEEN CONDUCTED IN FEDERAL

ii

COURT CONCERNING FRANK ZUCCARELLO AND HIS ACTIVITIES

AS A CONFIDENTIAL INFORMANT IN 1986 AND ASKED THE

CIRCUIT COURT FOR TIME TO OBTAIN THE TRANSCRIPTS OF

THOSE PROCEEDINGS AND PRESENT ANY CLAIMS ARISING

THEREFROM, AND HIS REQUEST WAS IMMEDIATELY DENIED... 26

CONCLUSION.................................................. 26

CERTIFICATE OF SERVICE ...................................... 27

CERTIFICATE OF COMPLIANCE ................................... 27

iii

TABLE OF AUTHORITIES

Case Page

Banks v. Dretke, 124 S. Ct. 1256 (2004).........8-10, 17, 21, 23

Card v. State, 652 So. 2d 344 (Fla. 1995) ................. 1, 20

Flores v. State, 662 So. 2d 1350 (Fla. 2nd DCA 1995) ....... 3, 10

Gholston v. State, 648 So. 2d 192 (Fla. 1st DCA 1994) ...... 3, 10

Giglio v. United States, 405 U.S. 150 (1972) .................. 4

Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994) ............. 9

Jones v. State, 591 So. 2d 911 (1991) ......................... 4

Kyles v. Whitley, 514 U.S. 419 (1995) ......................... 5

Lightbourne v. State, 549 So. 2d 1364 (Fla. 1989) ............. 1

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999) .............. 4

Maharaj v. State, 684 So. 2d 726 (Fla. 1996) ................. 20

McClain v. State, 629 So. 2d 320 (Fla. 1st DCA 1993) ........ 3, 9

Mogford v. State, 883 So. 2d 340 (Fla. 4th DCA 2004) ....... 3, 10

1

ARGUMENT IN REPLY

ARGUMENT I

THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN DENYING MR.

RIVERA’S RULE 3.850 MOTION WITHOUT AN EVIDENTIARY HEARING.

A. Introduction

In its half-hearted Answer Brief, the State can only

defend the circuit court’s summary denial by ignoring this

Court’s well-established jurisprudence that in determining

whether an evidentiary hearing is warranted on a Rule 3.850 or

3.851 motion, the factual allegations set forth therein must be

accepted as true. See Card v. State, 652 So. 2d 344, 346 (Fla.

1995); Lightbourne v. State, 549 So. 2d 1364, 1365 (Fla. 1989).

The State tries to circumvent this Court’s well-established

jurisprudence in two ways. First, the State relies upon the

circuit court’s order denying an evidentiary hearing as making

binding factual “findings” that are contrary to and reject Mr.

Rivera’s factual allegations.1 Second, the State relies upon

1 Early in its joint discussion of Arguments I and II, the

State indicates that relief was denied by the circuit court on

the basis of its “finding” which the State thereupon quotes

(Answer Brief at 5). Within the quote, the “finding” is clearly

a factual one, made without benefit of an evidentiary hearing.

Subsequently, the State says “the trial court found that

the plea agreement did not encompass this case” (Answer Brief at

6)(emphasis added). Again, the State is relying upon the

circuit court as having made a binding factual finding without

having conducted an evidentiary hearing.

Later, the State says, “The trial court also found that

appellant possessed information regarding Zuccarello’s plea deal

2

non-record material that apparently accompanied its response to

Mr. Rivera’s motion to vacate.2 This non-record material

consisted of documents from the State Attorney’s files in other

cases, and which were not in evidence at Mr. Rivera’s trial or

in his prior collateral proceedings.3 By resorting to reliance

and his informant status well before he filed his first motion

for post conviction relief” (Answer Brief at 14)(emphasis

added). Once again, the State is relying upon the circuit court

as having made a binding factual finding without having

conducted an evidentiary hearing.

The State then says that “The record supports these

findings” (Answer Brief at 14)(emphasis added). Here, the State

is treating the standard of review to be that which applies to

determinations of historical fact made after an evidentiary

hearing, i.e. whether there is evidence in the record to support

the circuit court’s finding of fact.

2 The documents on which the State seeks to rely are labeled

as exhibits 1-9 (1/3/07 Supplemental Record at 54-168). These

“exhibits,” though apparently accompanying the State’s 2004

response, were never identified within the response as being

relied upon (3PC-R. 117-40). Counsel can find no reference to

attached or accompanying “exhibits” in the response. In fact,

the clerk’s office in preparing the record was unaware that the

exhibits went with the response and did not include them with

the record submitted to this Court. Only after the submission

of the Initial Brief did the State move to supplement the record

with the “exhibits” that it had submitted to the circuit court

outside the parameters of an evidentiary hearing.

3 In its Answer Brief, the State makes representations as to

what the documents in “exhibits 1-9" are (Answer Brief at 9-10,

15-16). These factual representations are without evidentiary

support. Within these representations, the State seems to

concede that these “exhibits” were not documents from Mr.

Rivera’s case nor were these documents within the court files in

his criminal prosecution. Since there was no evidentiary

hearing, there is no sworn testimony identifying these documents

nor explaining how these documents from others criminal cases

not involving Mr. Rivera were relevant to his claims.

3

upon non-record material, the State has in fact conceded an

evidentiary hearing is required. See McClain v. State, 629 So.

2d 320 (Fla. 1st DCA 1993)(by attaching materials outside the

record to refute the allegations contained in a motion to

vacate, the State demonstrates the need for evidentiary

development); Gholston v. State, 648 So. 2d 192 (Fla. 1st DCA

1994)(same); Flores v. State, 662 So. 2d 1350 (Fla. 2nd DCA

1995)(same); Mogford v. State, 883 So. 2d 340 (Fla. 4th DCA

2004)(same).

B. Legal Analysis

Despite some twenty pages attempting to defend the

circuit court’s summary denial, the State does not address the

central questions of Mr. Rivera’s Arguments I and II.4 The

Answer Brief never contends that Zuccarello’s written plea

agreement was disclosed to Mr. Rivera at the time of trial or in

the prior Rule 3.850 proceeding (see Answer Brief at 4-25). The

Answer Brief never contends that the “prisoner receipts” were

disclosed to Mr. Rivera at the time of trial or in the prior

Rule 3.850 proceeding (see Id.). The Answer Brief never

contends that Detective Gross’s reports were disclosed to Mr.

Rivera at the time of trial or in the prior Rule 3.850

proceeding (see Id.). The State’s Answer Brief seems to assume

4 The State’s brief combines Arguments I and II.

4

that there can only be one Giglio/Brady claim. It assumes that

additional undisclosed exculpatory evidence that amplifies and

broadens the favorable nature of undisclosed evidence previously

litigated cannot be raised in subsequent proceedings when its

existence is discovered. According to the State, Mr. Rivera had

his one shot when he presented Giglio/Brady claims in his prior

collateral proceedings. The State’s position has been squarely

rejected by this Court. Lightbourne v. State, 742 So. 2d 238,

249 (Fla. 1999)(remanding for an evidentiary hearing to evaluate

additional evidence supporting previously presented Brady

claim).

The State’s argument also rests upon an incorrect

statement of the law applicable to Mr. Rivera’s Argument II.5

Mr. Rivera’s Giglio claim is that the State presented false

testimony at trial when Zuccarello testified that he had made no

agreement with the State in exchange for his testimony. This is

not a “newly discovered evidence” claim, as the State so

fervently wishes (Answer Brief at 6-7, 8, 10, 19, 25). The

claim is based on new evidence--that is, evidence which the

State did not previously disclose. However, the legal basis of

5 The State makes this argument by misrepresenting the basis

of Mr. Rivera’s claim. The State tries to convert Mr. Rivera’s

constitutionally based Giglio/Brady claims into newly discovered

evidence claims under Jones v. State, 591 So. 2d 911 (1991), by

mislabeling them.

5

the claim is Giglio v. United States, 405 U.S. 150, 153 (1972),

where the Supreme Court recognized that the “deliberate

deception of a court and jurors by the presentation of known

false evidence is incompatible with ‘rudimentary demands of

justice.” If this occurs, due process is violated and the

conviction and/or death sentence must be set aside unless the

error is harmless beyond a reasonable doubt. Kyles v. Whitley,

514 U.S. 419, 433 n.7 (1995).

The State argues that the circuit court’s summary

denial of Mr. Rivera’s Rule 3.850 motion was proper because “the

records on appeal of Rivera’s three prior appeals, clearly

establish that the defense was well aware of the information at

the time of trial or at the very latest prior to litigation of

his first motion for postconviction relief in 1994" (Answer

Brief at 6).6 However, the words employed by the State in its

6 The falseness of the State’s argument is revealed by the

fact it has to rely on “exhibits 1-9,” documents not from Mr.

Rivera’s court file, documents not even from the State’s files

regarding Mr. Rivera, but documents from other criminal cases

involving criminal defendants unconnected to Mr. Rivera. The

very fact that the State believes that “exhibits 1-9" are

necessary--i.e. needed to be submitted to the circuit court,

needed to be included in the record on appeal, and needed to be

relied upon in the Answer Brief to refute Mr. Rivera’s factual

allegations--clearly demonstrates the falseness of its claim

that “the records on appeal of Rivera’s three prior appeals,

clearly establish that the defense was well aware of the

information at the time of trial or at the very latest prior to

litigation of his first motion for postconviction relief in

1994" (Answer Brief at 6).

6

brief belie its argument that the circuit court’s decision was

merely a legal one, as opposed to a determination of contested

historical fact. The State repeatedly uses the word “finding”

when describing the underpinnings to the circuit court’s

decision to deny an evidentiary hearing (See Answer Brief at 5,

14). The “findings” that the State relies upon are clearly

factual ones, made without benefit of an evidentiary hearing.

The State also uses the word “found” in describing the circuit

court determinations: “the trial court found that the plea

agreement did not encompass this case” (Answer Brief at

6)(emphasis added). Similarly, the State argues that “The trial

court also found that appellant possessed information regarding

Zuccarello’s plea deal and his informant status well before he

filed his first motion for post conviction relief” (Answer Brief

at 14)(emphasis added).7 Factual findings rejecting the factual

7 It appears from the State’s brief that the State believes

that such a “finding” is justified upon the basis of “exhibits

1-9,” documents from State Attorney files regarding other

criminal defendants. However, these “exhibits” were not part of

the court files and records in Mr. Rivera’s case, were not

introduced into evidence at an evidentiary hearing with a proper

foundation laid, and were not subjected to the adversarial

process in any fashion. Permitting a circuit court to summarily

deny based upon such “exhibits” is akin to the circumstances in

Johnson v. Singletary, 647 So. 2d 106, 111 (Fla. 1994), where

this Court reversed and remanded for an evidentiary hearing

after a summary denial of relief was premised upon non-record

documents submitted by the State, while the defense was

precluded from presenting evidence supporting the factual

allegations in the motion to vacate.

7

allegations set forth in a motion to vacate can only occur after

affording the movant the opportunity to prove his factual

allegations.8

The problem here is that neither the circuit court nor

the State, in its Answer Brief, have accepted Mr. Rivera’s

factual allegations as true. As a result, neither the circuit

court nor the State have addressed Mr. Rivera’s specific

allegations that the documents he set forth in the motion to

vacate and included in an appendix were not disclosed and

demonstrate that the trial testimony of Zuccarello and

collateral testimony of the trial prosecutor9 were false.

8 The State’s response to this seems to be an argument that

the trial testimony and prior collateral testimony which Mr.

Rivera alleged in his motion were false, and therefore can be

relied upon in concluding that the factual allegation that the

testimony was false is refuted by the record. That is, the

State’s argument is that the very testimony challenged as false

refutes the allegation that it was false (See Answer Brief at

10-14, relying on Zuccarello’s trial testimony as refuting

Giglio allegation; and Answer Brief at 17-19, relying upon the

trial prosecutor’s collateral testimony as refuting allegation

that the prosecutor’s collateral testimony was false). This

Catch-22, if accepted as the law, would preclude evidentiary

hearings on any Giglio/Brady claims, which clearly has not been

this Court’s position. See Lightbourne v. State.

9 For reasons that are unclear, the State insists in its

Answer Brief on arguing that Kelly Hancock was the only

prosecutor involved in this criminal prosecution of Mr. Rivera

(Answer Brief at 24)(“Joel Lazarus was never a prosecutor in

this case. Kelly Hancock was the only prosecutor and therefore

the only one authorized to make a deal with any witness

regarding their testimony in this case.”). For its false

factual assertion, it relies upon Mr. Hancock’s testimony in

8

Instead, the State relies upon generalized

“information” about Zuccarello and upon representations lacking

in evidentiary hearing support about the prior public records

litigation in Mr. Rivera’s case. The State’s position seems to

be that it disclosed enough “information” to convert its duty to

disclose into an obligation upon defense counsel to discover.

prior collateral proceedings at which he was not asked whether

Mr. Lazarus was handling Mr. Rivera’s “case” in June of 1986.

As noted in the Initial Brief at 14, n.10, Mr. Rivera’s

allegation in the current motion to vacate was that, in June of

1986 when the deal was made with Zuccarello, Mr. Lazarus was the

prosecutor assigned to Mr. Rivera’s case. First, it is unclear

how Mr. Hancock’s testimony in which he was not asked about the

events in June of 1986 (two months before the indictment in the

present murder case was returned) refutes Mr. Rivera’s factual

allegation. Moreover, Mr. Rivera was arrested in February of

1986. His indictment was not returned until August because the

assigned prosecutor, Mr. Lazarus, decided to prosecute a

separate attempted murder case first (which was subsequently

used as aggravation in the murder case), while he worked on

developing evidence in the murder case. Under the controlling

law, the State’s insistence on contesting Mr. Rivera’s factual

allegations further demonstrates the need for an evidentiary

hearing.

The State also for some reason insists on contesting Mr.

Rivera’s factual allegation that Deputy Nick Argentine was

Zuccarello’s original contact with law enforcement regarding Mr.

Rivera (Initial Brief at 15, n. 12). In its Answer Brief, the

State asserts, “Argentine was never involved in this case”

(Answer Brief at 24). Again, it is unclear why the State

insists on contesting Mr. Rivera’s factual allegations,

particularly this one, given the fact that Zuccarello testified

that it was Deputy Argentine who he first contacted regarding

Mr. Rivera (R. 1406) (“I told him [Argentine] that I met Mike in

the cell and that he was - - he told me a couple of things and

then he asked me what he told me”). Perhaps, the State is

trying for the first time to acknowledge that Zuccarello’s trial

testimony contained falsehoods and is not worthy of belief.

9

Seemingly, the State’s argument is that it was up to Mr.

Rivera’s counsel to ascertain whether the testimony presented by

the State was truthful, and if not, to correct it. It was up to

defense counsel to go find exculpatory evidence that the State

did possess and, in some fashion, had placed in the “public

domain” (Answer Brief at 10). However, this argument is

contrary to the law that has been enunciated by the United

States Supreme Court.

“When police or prosecutors conceal significant

exculpatory or impeaching material in the State’s possession, it

is ordinarily incumbent on the State to set the record

straight.” Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004). A

rule “declaring ‘prosecutor may hide, defendant must seek,’ is

not tenable in a system constitutionally bound to accord

defendants due process.” Id. at 1275. Merely placing

exculpatory evidence somewhere in the “public domain” does not

relieve the State of its obligation to disclose favorable

evidence and/or correct false or misleading testimony.

In making its argument, the State also contends that

Mr. Rivera either was or should have been aware of “information”

about Zuccarello, arguing that “Zuccarello’s status as an

informant was known or could have been known” before trial

(Answer Brief at 8-14). As support for this argument, the State

10

cites to the attachments to its circuit court response to Mr.

Rivera’s Rule 3.850 motion (Answer Brief at 8-10). The State

cites to depositions, a bond hearing and discovery responses in

other criminal cases in which Zuccarello was a witness (Answer

Brief at 8-10). The State’s citations and argument establish

the need for an evidentiary hearing: the State does not accept

Mr. Rivera’s allegations as true, but instead attempts to offer

its own version of the facts.10 McClain v. State, 629 So. 2d 320

(Fla. 1st DCA 1993)(by attaching materials outside the record to

refute the allegations contained in a motion to vacate, the

State demonstrates the need for evidentiary development);

Gholston v. State, 648 So. 2d 192 (Fla. 1st DCA 1994)(same);

Flores v. State, 662 So. 2d 1350 (Fla. 2nd DCA 1995)(same);

Mogford v. State, 883 So. 2d 340 (Fla. 4th DCA 2004)(same).

Further, none of the criminal cases involved or

mentioned in the “exhibits” concerned Mr. Rivera. The State’s

position is seemingly the position rejected by the Supreme Court

10 Specifically, the State relies upon documents that it

marked as “exhibits” and submitted to the circuit court. These

documents were not submitted within the course of an evidentiary

hearing. Testimony subject to cross-examination setting forth a

proper foundation was not heard. An opportunity to register

objections under the rules of evidence was not provided, nor was

an opportunity afforded to present evidence conflicting with the

State’s representations as to what these “exhibits” showed.

Simply put, these “exhibits” were not submitted as part of any

adversarial process. See Johnson v. Singletary, 647 So. 2d 106,

111 (Fla. 1994).

11

in Banks: Mr. Rivera’s counsel was supposed to assume that the

State had not complied with its constitutional obligations and

thus should have engaged in a thorough scrubbing of the “public

domain” for information that the State had withheld from him,

but had allowed in some fashion to be seen by others who may

have, but were not required to, let him see it.11 The State

offers no valid explanation comporting with Banks of how Mr.

Rivera was supposed to know about these matters, or why these

matters excuse the State’s presentation of Zuccarello’s false or

misleading testimony at Mr. Rivera’s trial, and/or its failure

to correct it.

Most importantly, none of the criminal cases

referenced in the “exhibits” on which the State seeks to rely

indicated the existence of a written plea agreement requiring

Mr. Zuccarello to cooperate in Mr. Rivera’s case. The Answer

Brief states:

11 Attorneys representing other criminal defendants are under

no constitutional obligation to disclose information that they

obtain from the State in the course of their representation of a

client to Mr. Rivera or his counsel.

12

On August 18, 1986, Broward Assistant State Attorney,

Joel Lazarus, turned over to counsel for Jay

Richitelli, Howard Grietzer [sic], the Zuccarello plea

agreement of June 1986. Correspondence to Grietzer

references the agreement and indicates that a copy was

attached to the letter. (ROA 113).

(Answer Brief at 9). The citation to page “113" is in fact to

the January 3, 2007, Supplemental Record. The letter referenced

in the quoted passage appears as “Exhibit 3.” Moreover, the

Answer Brief does not explain how this supposed disclosure to

Howard Greitzer relates to the State’s failure to disclose the

written plea agreement to Mr. Rivera or its failure to correct

Zuccarello’s false trial testimony. It should be noted that

Howard Greitzer was not Mr. Rivera’s counsel.12 So, disclosure

to Mr. Greitzer had nothing to do with Mr. Rivera.13 Again, the

State’s failure to accept Mr. Rivera’s allegations as true and

12 Mr. Rivera was indicted in the instant case on August 6,

1986. He was arraigned on August 14, 1986. At that time, Ed

Malavenda, who was also representing Mr. Rivera in the separate

attempted murder case, was appointed to represent him in the

instant matter as well.

13 Moreover, to the extent that the State is alleging, without

having presented any supporting testimony, that the Greitzer

letter was disclosed pursuant to a public records request in

1995, the State makes no allegation that the written plea

agreement was disclosed with the letter in 1995 pursuant to the

public records request (Answer Brief at 9). Mr. Rivera’s claim

in the motion to vacate was premised upon the actual plea

agreement, i.e. that specific piece of paper. It was not

premised upon some letter an attorney named Howard Greitzer.

13

its references to supposedly contradictory facts shows the need

for an evidentiary hearing.

The State concludes this portion of its argument by

stating:

All of the information appellant claims is newly

discovered evidence was in the public domain via

deposition, bond hearing and discovery pleadings in

cases where Zuccarello was listed as a witness against

his co-defendants, almost a year prior to his

testimony in this case.

(Answer Brief at 10). First, the State does not even discuss

“all” of the new information alleged in Mr. Rivera’s Rule 3.850

motion, much less show that it had previously been disclosed to

Mr. Rivera. The State never says that Zuccarello’s written plea

agreement was disclosed to Mr. Rivera. The State never mentions

the “prisoner receipts” showing that Zuccarello was working with

Broward deputies before and during the time he was supposedly

getting admissions from Mr. Rivera. The State never says that

the reports written by Detective Gross were disclosed to Mr.

Rivera.

The State also relies upon Zuccarello’s trial

testimony as showing that Mr. Rivera “was well aware of

Zuccarello’s extensive criminal history, his participation with

law enforcement agencies and his plea agreements” (Answer Brief

at 10-14). The main problem here is that the portions of

14

Zuccarello’s trial testimony cited by the State were false

and/or misleading, as Mr. Rivera has alleged.

When Zuccarello pled to the numerous pending charges

against him on June 12, 1986, it was pursuant to an undisclosed

plea offer from the Broward County State Attorney’s Office.

This plea agreement required Zuccarello to cooperate with

Broward sheriff’s deputies Presley, Argentine and Carney and

with Broward prosecutor Lazarus. Argentine was the deputy to

whom Zuccarello claimed he had reported Mr. Rivera’s admissions

(R. 1406). Carney had interviewed Mr. Rivera during the

investigation (R. 1525-26, 1533-34). Presley was one of the

Broward detectives who had received custody of Zuccarello from

the jail (3PC-R., “Supplemental Record,” 65). At the time of

the agreement, Lazarus was the prosecutor on Mr. Rivera’s case

(R. 1922). The agreement also required Zuccarello to testify

when he was subpoenaed to do so. As a reward for his

cooperation, Zuccarello received the following consideration:

The pleas will be with a CAP, or maximum period of

incarceration of Fifteen (15) Years in prison. The

State does reserve the right to request a period of

PROBATION to run consecutive to the incarceration;

there will be a CAP, or maximum period of probation

requested, of TEN (10) years.

II. The Broward County cases, as outlined above, will

run CONCURRENT with the charge(s) the defendant will

be pleading to in Dade County.

. . . .

15

IV. In return for the above consideration, the

defendant will not be charged with any additional

cases in Broward county 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 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.

(3PC-R., “Supplemental Record,” 63-64)(emphasis added).

Thus, when Zuccarello testified on direct examination

that he had been made no promises in exchange for testifying in

Mr. Rivera’s case (R. 1407), that testimony was false and/or

misleading. When Zuccarello testified on cross-examination that

the State had made no deals with him regarding testifying in Mr.

Rivera’s case (R. 1410), that testimony was false and/or

misleading.

Despite making no argument that Zuccarello’s written

plea agreement was disclosed to Mr. Rivera, the State insists

that “appellant knew at the time of trial that Zuccarello had

entered into a plea agreement in Broward County” (Answer Brief

at 13-14). However, the defense did not know that Zuccarello’s

16

plea agreement said the Zuccarello would “not be charged with

any additional cases in Broward County” or that at Zuccarello’s

sentencing, the State would “bring forward all law enforcement

personnel familiar with the cases and the efforts of

[Zuccarello] for the Court’s consideration in sentencing.” In

his trial testimony, Zuccarello emphatically testified that he

had received no consideration in his plea agreement and that he

had not agreed to cooperate with the State in exchange for that

consideration. Although he had a motion to mitigate his

sentence pending, he testified, the outcome of that motion was

“not guaranteed,” and his testimony in Mr. Rivera’s case would

have no bearing on whether or not his sentence would be reduced

(R. 1410, 1419).

The State next argues that Mr. Rivera “possessed

information regarding Zuccarello’s plea deal and his informant

status well before he filed his first motion for postconviction

relief” (Answer Brief at 14). Again, this discussion never

addresses Zuccarello’s written plea agreement, the prisoner

receipts or Detective Gross’s reports. Instead, the State

selectively summarizes some of the public records litigation in

Mr. Rivera’s case, broadly asserting that the State Attorney’s

Office “complied” with Mr. Rivera’s public records requests

(Answer Brief at 14-16). The only thing that this summary shows

17

is that Mr. Rivera requested public records. It does not show

that the records at issue in Argument II were ever disclosed.

In fact, in connection with the discussion of the prisoner

receipts, Mr. Rivera’s Rule 3.850 motion pled, “Mr. Rivera’s

collateral counsel was advised by the Broward County Sheriff’s

Office that the incarceration records for Frank Zuccarello were

destroyed pursuant to a destruction schedule in the early 90's”

(3PC-R. 14 n.3). The State’s arguments show the need for an

evidentiary hearing.

The State argues that Mr. Rivera’s allegations in his

first Rule 3.850 motion, his arguments in the circuit court, his

1995 examination of trial prosecutor Hancock, and the resolution

of his 1998 public records demand show “that appellant had the

information regarding Zuccarello’s plea deal and informant

status and presented it as a claim in his first motion” (Answer

Brief at 16-20). Again, this argument never states that

Zuccarello’s written plea agreement, the prisoner receipts and

Detective Gross’s reports were disclosed to Mr. Rivera. The

only thing that these prior allegations and arguments

demonstrate is general information that Zuccarello had a history

as an informant and had entered pleas in some cases. In

contrast to that general information, the written plea

agreement, the prisoner receipts and Detective Gross’s reports

18

are documentary evidence specifically showing that Zuccarello

entered a plea agreement requiring his cooperation in Mr.

Rivera’s case, that Zuccarello was cooperating with the deputies

and prosecutor responsible for Mr. Rivera’s case, and that

Zuccarello was cooperating with Broward deputies well before he

met Mr. Rivera or reported any alleged statements by Mr. Rivera

to “Nick Argentine.”

Moreover, the State’s summary of the prior litigation

omits an essential fact: prosecutor Hancock testified that the

State had made no deals with Zuccarello in exchange for his

cooperation in Mr. Rivera’s case. In 1995, Hancock testified

that neither he nor any members of the prosecution team had made

Zuccarello any promises or offered him anything in exchange for

his testimony in Mr. Rivera’s case (1PC-R. 686, 694-95). The

State’s closing memorandum urged that Mr. Rivera’s claim be

denied based upon Hancock’s testimony: “Hancock testified that

Zuccarello did not receive any deal for his testimony” (State’s

Memorandum dated 6/1/95 at 11). This testimony was false and/or

misleading, as the written plea agreement demonstrates; it

certainly misled Mr. Rivera’s counsel, the circuit court and

this Court.

The State argues that Mr. Rivera’s allegations

regarding diligence are “wholly inadequate to justify an

19

evidentiary hearing on the diligence element” (Answer Brief at

21-23). The State offers no authority to support this

argument.14 Mr. Rivera proffered quite specific facts regarding

counsel’s diligence in discovering the facts supporting Argument

II and described in detail how counsel found the documents (3PCR.

12-14). Mr. Rivera’s proffer included the facts that

“counsel had never seen this ‘Plea Offer’ before” and that

counsel had found no “evidence of its previous disclosure” (3PCR.

13-14). The State relies on previous public records

litigation without once stating that the specific documents at

issue in Argument II were ever disclosed (Answer Brief at 22-

23). The State does not mention that prosecutor Hancock’s 1995

testimony and the State’s 1995 closing memorandum stated that no

Zuccarello plea agreement existed.

The State argues that Mr. Rivera “has failed to

demonstrate that the plea agreement of June 1986 encompassed

Zuccarello’s participation in this case” (Answer Brief at 23-

14 Certainly, Mr. Rivera did make factual allegations

regarding his diligence in his motion to vacate. However, the

State overlooks the fact that after the motion to vacate was

filed, the United States Supreme Court held that due process

required the State to disclose favorable evidence or correct

false and/or misleading testimony, and until the State honored

its constitutional obligation, there was no diligence

requirement imposed upon a criminal defendant to figure out that

the State had not honored its constitutional obligation. Banks

v. Dretke.

20

24). The State contests the facts pled by Mr. Rivera,

contending, for example, that Detective Argentine and prosecutor

Lazarus were not involved in Mr. Rivera’s prosecution (Id.).

However, Zuccarello testified at trial that Argentine was the

officer to whom Zuccarello reported his alleged conversations

with Mr. Rivera (R. 1406).15 The prisoner receipts show that

Zuccarello was removed from the jail by Broward deputy Argentine

(3PC-R., “Supplemental Record,” 67). Presley, another Broward

detective named in the plea agreement, had also received custody

of Zuccarello from the jail (3PC-R., “Supplemental Record,” 65).

The State dismisses the fact that Broward deputy Carney was

named in the plea agreement as an officer with whom Zuccarello

was required to cooperate because Carney testified at Mr.

Rivera’s trial only about interviewing Mr. Rivera (Answer Brief

at 24 n.10). The State asserts, without more, “Carney never

spoke to Zuccarello” (Id.). The fact that the State is

contesting the truth of Mr. Rivera’s allegations establishes the

need for an evidentiary hearing.

The State argues that Zuccarello’s plea agreement was

not related to Mr. Rivera’s case because the agreement “excluded

15 After Zuccarello testified that he first notified “Nick

Argentino” with the Broward Sheriff’s Office, he was asked “And

what did you tell him?” Zuccarello answered, “I told him that I

met Mike in the cell and that he was - - he told me a couple of

things and then he asked me what he told me” (R. 1406).

21

specifically Zuccarello’s participation in any homicide case”

(Answer Brief at 24). This argument repeats one basis of the

circuit court’s summary denial which Mr. Rivera addressed in his

Initial Brief. The paragraph of the plea agreement which the

State references begins, “In return for the above consideration,

the defendant will not be charged with any additional cases in

Broward county in which he may have participated” (3PC-R.,

“Supplemental Record,” 63). The paragraph then states that this

agreement does not include “any cases in which injuries to any

person resulted” and that “any HOMICIDE case will be handled

separate and apart from this agreement” (Id.). The paragraph

clearly addresses Zuccarello’s exposure to charges against him,

not cases in which he might be a witness.16

When a successive postconviction motion alleges the

previous unavailability of new facts and the movant’s diligence,

an evidentiary hearing is required if the facts are disputed or

if a procedural bar does not "appear[] on the face of the

pleadings." Card v. State, 652 So. 2d 344, 346 (Fla. 1995).

Factual allegations as to the merits of a constitutional claim

as well as to issues of diligence must be accepted as true, and

an evidentiary hearing is warranted if the claims involve

16 Certainly, the State, as the circuit court before it, is

ignoring Mr. Rivera’s factual allegation as to the import of the

clear language in the plea agreement.

22

"disputed issues of fact." Maharaj v. State, 684 So. 2d 726,

728 (Fla. 1996). The State has disputed Mr. Rivera’s factual

allegations, and an evidentiary hearing is required.17

ARGUMENT II

MR. RIVERA WAS DEPRIVED OF DUE PROCESS UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE PROSECUTION

INTENTIONALLY PERMITTED FALSE AND/OR MISLEADING EVIDENCE TO BE

PRESENTED TO MR. RIVERA’S JURY AND USED IT TO OBTAIN A

CONVICTION.

The Answer Brief combines the State’s responses to

Arguments I and II. This reply has addressed the State’s

responses to Argument II in Argument I, supra.

ARGUMENT III

MR. RIVERA WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT AS WELL AS HIS RIGHTS UNDER THE FIFTH,

SIXTH, AND EIGHTH AMENDMENTS, BECAUSE EITHER THE STATE FAILED TO

DISCLOSE EVIDENCE WHICH WAS MATERIAL AND EXCULPATORY IN NATURE

AND/OR PRESENTED MISLEADING EVIDENCE AND/OR DEFENSE COUNSEL

UNREASONABLY FAILED TO DISCOVER AND PRESENT EXCULPATORY EVIDENCE

AND/OR NEW EVIDENCE ESTABLISHES MANIFEST INJUSTICE.

The State contends that the circuit court properly

determined that the evidence supporting Mr. Rivera’s allegations

in Argument III was “known or could have been known to appellant

prior to the initial motion for postconviction relief” (Answer

Brief at 26-27). However, as it did regarding Arguments I and

II, the State never contends that the specific documents upon

17 Argument I of Mr. Rivera’s Initial Brief also addressed the

circuit court’s erroneous summary denial of Arguments III, IV

and V. The Answer Brief does not address those errors. An

evidentiary hearing is required on those issues as well.

23

which Argument III relies were ever disclosed to Mr. Rivera.

Rather, the State again refers to generalized “information” out

in the ether as fulfilling the State’s obligation to disclose

favorable information to Mr. Rivera. This is not the law.

“When police or prosecutors conceal significant exculpatory or

impeaching material in the State’s possession, it is ordinarily

incumbent on the State to set the record straight.” Banks v.

Dretke, 124 S. Ct. 1256, 1263 (2004). A rule “declaring

‘prosecutor may hide, defendant must seek,’ is not tenable in a

system constitutionally bound to accord defendants due process.”

Id. at 1275.

The State argues that “any ‘evidence’ in support of the

claim that Zuccarello testified falsely at the Cohen murder

trial was not in existence at the time of Rivera’s trial”

because the Cohen trial occurred after Mr. Rivera’s trial

(Answer Brief at 27). Mr. Rivera’s claim does not rely upon any

evidence which came out during the Cohen trial. Rather, Mr.

Rivera proffered two previously undisclosed documents, one

concerning a polygraph of Zuccarello conducted on June 21, 1986,

and the other concerning a polygraph of Zuccarello conducted on

June 7, 1986 (3PC-R., “Supplemental Record,” 80-83, 84-86).

Both of these documents existed well before Mr. Rivera’s 1987

trial.

24

The State argues that the results of the polygraphs would

not have been admissible at Mr. Rivera’s trial (Answer Brief at

27-28). However, in his written plea agreement dated June 12,

1986, Zuccarello agreed to the following: “The defendant

[Zuccarello] will, in his cooperation, be giving statements,

which will be tested by polygraph as to their veracity” (3PC-R.,

“Supplemental Record,” 63). Of course, the State did not

disclose this written plea agreement. However, had the

agreement been properly disclosed, it opened the door for Mr.

Rivera’s defense to question Zuccarello and the polygraph

administrators about Zuccarello’s truthfulness on the

polygraphs.

The State argues that opinions contained in newspaper

articles are not discoverable or admissible (Answer Brief at 28-

29). As one support for Argument III, Mr. Rivera proffered a

Miami Herald article written in 2001 in which the reporter

interviewed Lt. R. Rios of the Broward County Sheriff’s Office.

Rios had interrogated Mr. Rivera in 1986. The 2001 news article

quoted Rios as saying that in 1986, Rios believed Mr. Rivera had

invoked his right to counsel in earlier interrogations by

Detectives Scheff and Amabile, who had told Rios that Mr. Rivera

had waived his Miranda rights. Contrary to the State’s

position, this evidence existed before Mr. Rivera’s trial. The

25

article reported what Rios believed in 1986, but the State did

not disclose it to Mr. Rivera.

The State argues that the evidence from Rios was previously

available because Rios was deposed before trial and was excused

from a subpoena to a public records hearing (Answer Brief at

29). A deposition does no good if the deponent does not reveal

exculpatory evidence; a subpoena to a public records hearing

only involves the pursuit of public records, which also does no

good if the State withholds exculpatory evidence. The State

never says that Rios or the State ever revealed Rios’s views to

Mr. Rivera, which the State was obliged to do. Banks, 124 S.

Ct. at 1263, 1275.

The State’s only argument regarding prejudice is the broad

statement that “any further impeachment of Zuccarello regarding

his informant status would not have changed the outcome” (Answer

Brief at 29). The State does not address the significant

documentary evidence impeaching Zuccarello which was not

previously disclosed. More importantly, the State does not

address the cumulative analysis detailed in Mr. Rivera’s Initial

Brief which must be conducted (Initial Brief at 90-99).

ARGUMENT IV

26

THE RESULTS OF DNA TESTING CONSTITUTE NEWLY DISCOVERED EVIDENCE

THAT ESTABLISH MR. RIVERA’S ENTITLEMENT TO A NEW TRIAL.

The State argues that the DNA testing showing that the hair

found in Mark Peters’ van did not belong to Staci Jazvac does

not require a new trial because “the jury was never told that

the hair was that of Staci’s [sic]” (Answer Brief at 30-32).

The State acts as if its presentation of the hair evidence at

trial and its references to the hair evidence in opening and

closing arguments was only intended to tell the jury that the

hair evidence was insignificant. To the contrary, the State

relied upon the hair evidence at trial to show that the murder

occurred in the van and to establish Mr. Rivera’s guilt.

The State’s argument that the jury was not told that the

hair evidence was “conclusive or that it was full proof” (Answer

Brief at 32) completely misses the point. The hair evidence was

the only physical evidence the State had that the offense

occurred in the van. The State’s whole theory of prosecution

rested upon the offense having occurred in the van. The DNA

testing shows that the State has no evidence that the offense

occurred in the van.

The State also argues that the DNA testing does not require

a new trial because “the evidence of Rivera’s guilt was

overwhelming” and the erroneous hair evidence “was harmless

27

beyond a reasonable doubt” (Answer Brief at 32). The State

describes this evidence as “un-assailed [sic]” and then proceeds

to recite a summary of the trial evidence as if that evidence is

reliable and has not been seriously called into question by the

evidence discovered in post-conviction.

For its “overwhelming evidence” argument, the State relies

upon the testimony of the jailhouse informants, two women to

whom Mr. Rivera had made supposedly incriminating phone calls,

Mr. Rivera’s contradictory and supposedly incriminating

statements to police, and the Jennifer Goetz incident (Answer

Brief at 32- 37). Argument III of Mr. Rivera’s Initial Brief

provides a comprehensive, cumulative discussion of the trial

evidence, the evidence presented in the prior Rule 3.850

proceeding, and the evidence presented in this Rule 3.850

proceeding. That evidence shows that the testimony of all the

jailhouse informants is at least suspect, that Zuccarello’s

testimony was outright false, that the phone calls to the two

women were inconsistent with other evidence, that Mr. Rivera

never confessed to the police, and that the hair evidence upon

which the State relied at trial to place the offense in the van

was wrong. The State addresses none of this.

ARGUMENT V

28

MR. RIVERA WAS DENIED A FAIR TRIAL AND POSTCONVICTION PROCEEDING

DUE TO JUDGE FERRIS’S BIAS AND PREDETERMINATION OF THE ISSUES

CONTRARY TO THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.

The State argues that this claim is procedurally barred and

without merit (Answer Brief at 38). The State’s procedural bar

argument does not survive the fact that this claim is based upon

evidence which only came to light in 2001. The State’s merits

argument does not address the fact that although Ferris stated

he wanted a fair trial for Mr. Rivera, he admitted his personal

beliefs were not the same. The fact that Judge Ferris had to

strive to set aside his personal feelings could not be a clearer

statement of bias or prejudice.

ARGUMENT VI

MR. RIVERA WAS DENIED DUE PROCESS WHEN HE LEARNED THAT AN

EVIDENTIARY HEARING HAD BEEN CONDUCTED IN FEDERAL COURT

CONCERNING FRANK ZUCCARELLO AND HIS ACTIVITIES AS A CONFIDENTIAL

INFORMANT IN 1986 AND ASKED THE CIRCUIT COURT FOR TIME TO OBTAIN

THE TRANSCRIPTS OF THOSE PROCEEDINGS AND PRESENT ANY CLAIMS

ARISING THEREFROM, AND HIS REQUEST WAS IMMEDIATELY DENIED.

The Answer Brief does not address this argument.

CONCLUSION

In light of the arguments presented here and in his Initial

Brief, Mr. Rivera requests that this matter be remanded to the

circuit court for a full and fair evidentiary hearing and for

other relief as set forth in this brief.

29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has

been furnished by United States Mail, first-class postage

prepaid, to Celia Terenzio, Assistant Attorney General,

Office of Attorney General, 1655 Palm Beach Lakes Blvd.,

Suite 300, West Palm Beach, Florida 33401, on March __,

2007.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the

font requirements of rule 9.210(a)(2) of the Florida Rules

of Appellate Procedure.

___________________________

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Appellant

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