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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