PER CURIAM.
This case is before the Court on appeal from an order denying a successive motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Michael T. Rivera was convicted and sentenced to death for the first-degree murder of Staci Lynn Jazvac. Rivera v. State (Rivera I), 561 So.2d 536, 537 (Fla. 1990). In the opinion affirming the conviction and sentence, this Court detailed the facts of the murder:
Id. at 537-38. The jury recommended a death sentence by unanimous vote. Id. at 538. In support of the death penalty, the trial court found four aggravating circumstances: (1) Rivera had previously been
Rivera raised four claims on direct appeal: (1) the introduction of similar fact evidence regarding a sexual assault on another girl violated both Williams v. State, 110 So.2d 654 (Fla.1959), and the Florida Evidence Code; (2) the trial court improperly excluded "reverse" Williams rule evidence that the crime had been committed by another person; (3) the death penalty was disproportionate because the HAC and CCP aggravating factors were not supported by the record; and (4) the trial court erred when it failed to find that Rivera acted under extreme duress or under the substantial domination of another, or that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired. Rivera, 561 So.2d at 538-41. This Court struck the CCP aggravating factor, but affirmed the conviction and sentence. Id. at 541.
In the initial postconviction motion, Rivera presented twenty claims. Rivera v. State (Rivera II), 717 So.2d 477, 480 (Fla. 1998). The claims were:
Id. at 480 n. 1. The Court affirmed the denial of all twenty claims except the summarily denied claim that Rivera's counsel was ineffective for failing to adequately investigate and prepare for the penalty phase, which the Court remanded for an evidentiary hearing. Id. at 484, 487. After an evidentiary hearing, the trial court denied relief, and this Court affirmed. Rivera v. State (Rivera III), 859 So.2d 495, 512 (Fla.2003). The Court also denied habeas corpus relief. Id.
On October 1, 1999, Rivera filed a successive rule 3.850 motion. Rivera v. State (Rivera IV), 995 So.2d 191, 193 (Fla.2008).
Id. After a Huff
With respect to the newly discovered DNA evidence claim, several hairs were collected from Staci's body and from a van that belonged to Mark Peters, which the State argued during trial was used by Rivera to abduct Staci. During trial, the State presented a hair comparison expert who testified that a hair found in Peters's van was similar to the known hair of Staci. However, the DNA analysis performed on that hair in 2003 revealed that it did not match the known DNA profile of Staci.
In the Giglio claim, Rivera alleged that the State intentionally permitted Frank Zuccarello, a jailhouse snitch, to present false and misleading testimony that he was not offered a deal by the State in exchange for his testimony against Rivera. In support of this claim, Rivera attached to his successive motion the following documents: (1) a plea offer extended by the State to Zuccarello, (2) four Broward County Jail "prisoner receipts" dated between April and July 1986 releasing Zuccarello into the custody of various law enforcement officers, and (3) two documents that refer to Zuccarello as a confidential informant (CI).
In his Brady/ineffective assistance claim, Rivera alleged that the State withheld the above evidence. Rivera also alleged that the State withheld: (1) two reports that indicated two separate interviewers believed Zuccarello repeatedly lied during polygraph examinations with respect to the murder of Stanley Cohen;
Rivera also alleged that his initial postconviction counsel exercised due diligence with regard to these claims. The initial postconviction proceedings conducted before the circuit court occurred from approximately 1991-1995.
During the evidentiary hearing, Rivera presented the testimony of Keffer, Braden, and McClain. He also presented the testimony of Valerie Jonas, an attorney who provided materials to McClain that were relied on by Rivera in this proceeding; Susan Bailey, the Assistant State Attorney who handled the initial postconviction proceedings; Robert Rios, an officer who interrogated Rivera and performed a polygraph examination on Zuccarello; and Edward Malavenda, Rivera's trial counsel.
Malavenda testified that Zuccarello was a jailhouse informant who hoped to receive leniency for his testimony. Malavenda did not recall having Zuccarello's plea offer during trial, and testified that he would have cross-examined Zuccarello with respect to the plea offer if he had it. Malavenda also did not recall various other documents Rivera now relies on, and was unaware that Zuccarello had been involved in a homicide.
Keffer and Braden testified with regard to their recollections and procedures during their respective representations of Rivera. Keffer testified she was aware that Zuccarello had acted as a State witness in several cases, but until newspaper articles about Zuccarello's testimony in other cases were published in 1998, she did not know that his credibility was challenged, or the extent to which he received favor from law enforcement. Braden recalled that during the initial postconviction proceedings, an evidentiary hearing was held on a Brady/Giglio claim with respect to jailhouse informants. He suspected a plea arrangement or offer existed, and recalled that Zuccarello stood out because of his testimony during trial that he received a deal in another case. Neither Braden nor Keffer recalled ever seeing Zuccarello's plea offer. They also did not recall seeing various other documents Rivera relies on in this successive postconviction proceeding.
McClain testified with respect to the documents he received from Jonas. Among those items were the affidavits of Warren Holmes, who conducted a polygraph examination of Zuccarello, and Tony Fantigrassi, who was the Captain of the Broward County Sheriff's Office. Both Holmes and Captain Fantigrassi asserted in the affidavits that Zuccarello provided false information during homicide investigations. McClain also testified that after a newspaper article was published in which Detective Rios indicated Rivera invoked his right to counsel during an interrogation, McClain met with Rios and obtained both the report of that interrogation and the results of a polygraph examination Rios conducted on Zuccarello.
Assistant State Attorney Bailey testified with respect to her procedures in responding to records requests, and various documents that she asserted were disclosed to the defense, including the Zuccarello plea offer. She testified that letters written by her in 1994 and sent to Rivera's counsel documented what files were disclosed, as well as what documents were withheld from those files. The letters confirmed that the contents of various files, including those of Zuccarello and his associates Jay and Scott Richitelli, were disclosed during the initial postconviction proceedings. She testified that one of the Richitelli files included the plea offer and a letter that referenced the plea offer. However, Bailey testified that she did not recall certain documents being in the file of the State Attorney's Office, including the incident and disciplinary reports regarding Zuccarello's
Rios testified with respect to the interrogation of Rivera that he conducted in 1986. Before he arrived for the interrogation, he requested that Rivera be informed of his rights under Miranda. Upon his arrival, Rios asked Rivera whether he had been informed of the Miranda rights, and Rivera responded in the affirmative. Rios did not repeat the Miranda warnings and began the interrogation, during which Rivera stated he was not involved in Staci's homicide. Rios testified that approximately an hour and a half after the interrogation began, Rivera became upset and stated, "I want my lawyer. I am telling you I want my lawyer, like I told those two guys I want my lawyer and I want my lawyer."
Rios also testified that he performed a polygraph examination of Zuccarello in relation to the Cohen homicide. During the examination, Zuccarello provided various accounts of the homicide, but ultimately recited a final version in which he admitted he was present. Rivera was not mentioned at any point during the polygraph examination.
In response, the State presented Bailey, Hancock, and Bruce Raticoff, who was Zuccarello's counsel. Hancock testified that Starr Peck, who Rivera informed during a phone call that he had killed Staci, was the witness who "broke the case." Additionally, Hancock testified that the most damaging evidence against Rivera was the testimony of the young girl who Rivera previously attempted to molest and strangle. Hancock also testified that he did not promise Zuccarello anything in exchange for his testimony or provide any reward. Further, he was not a party to any of the conditions in the plea agreement, and was not even aware of the plea during the prosecution of Rivera.
Raticoff testified that the linchpin for the plea deal between Zuccarello and the State was the information Zuccarello provided regarding the Cohen homicide. He testified that to his knowledge, Zuccarello's testimony against Rivera was not contemplated by the plea, and Zuccarello was not a CI. Raticoff also testified that he did not draft the plea offer, and did not know the extent or content of the conversations between Zuccarello and law enforcement.
The postconviction court subsequently denied the remanded claims presented in the successive motion as procedurally barred because Rivera had not established due diligence. The postconviction court also concluded that the Brady and Giglio claims were without merit, and the ineffective assistance of counsel claim was insufficiently pled. Finally, the postconviction court ruled that the newly discovered evidence was not of such a nature that it would probably produce an acquittal in a retrial, even when considered together with all admissible evidence presented during the various postconviction proceedings.
In a successive rule 3.850 motion, a defendant must establish that the facts
Owen v. Crosby, 854 So.2d 182, 187 (Fla. 2003).
With respect to due diligence, before remanding Rivera's claims in Rivera IV for an evidentiary hearing, this Court stated:
995 So.2d at 195-96 (emphasis supplied). Rivera contends this language indicates that the burden is on the State to establish which specific documents were actually received by collateral counsel. We disagree. In a successive postconviction motion, it is incumbent on the defendant to demonstrate that his claims could not have been raised in the initial postconviction motion through the exercise of due diligence. See Zeigler v. State, 632 So.2d 48, 51 (Fla.1993) ("Th[e procedural] bar can be overcome if the movant can show that the grounds asserted were not known and could not have been known to him at the time of the earlier motions." (emphasis supplied)). In contrast to this appeal, no evidentiary hearing had been conducted prior to our decision in Rivera IV, 995 So.2d at 197 n. 2 ("Although Rivera's motion was initially filed under rule 3.850, our current rule 3.851 ... articulates this Court's long-time policy establishing a presumption in favor of holding evidentiary hearings.").
During the evidentiary hearing, Rivera presented the testimony of various witnesses to establish what documents were not disclosed. Of those witnesses, Braden was the only one who represented Rivera before the circuit court during his initial postconviction proceedings, and he began his representation in December 1994, shortly before the final amended rule 3.850 motion was filed on January 3, 1995. In response, the State presented the testimony of Bailey, who responded to the public records requests made during the initial postconviction proceedings. Bailey testified
Rivera's claims relate to various documents presented during the evidentiary hearing, including: (1) the Zuccarello plea offer; (2) Rios's report of the interrogation, which indicated that Rivera requested to speak with counsel; (3) the "prisoner receipts" regarding Zuccarello's movements in and out of jail; (4) the written synopsis of a conversation with Zuccarello prepared by Detective Joseph Gross of the Miami-Dade Police Department, which refers to Zuccarello as a CI; (5) a report regarding an interview of Zuccarello that refers to him as a CI and that also indicates he went out on location with detectives, also authored by Detective Gross; (6) an unnamed list that summarized the crimes Zuccarello provided information about, which refers to Zuccarello as a CI;
Rivera asserts that the postconviction court failed to assess diligence from the perspective of counsel during the initial postconviction proceedings, contrary to the holding of this Court in Waterhouse v. State, 82 So.3d 84 (Fla.2012). In Waterhouse, both trial and postconviction counsel relied on a police report that stated a witness did not remember when the defendant or the victim left a lounge on the night of the murder. Id. at 102. Counsel did not contact the witness because of this report, but the witness later stated that the report did not accurately reflect the information he provided to the police. Id. at 90. The State asserted that counsel was not diligent because the reference to the witness in the police report provided notice that the individual was a potential witness. Id. This Court held that counsel is permitted to rely on the veracity of a police report, and due diligence is met if (1) a witness swears in an affidavit that he or she spoke to police about the crime, but the report ultimately contained inaccurate or false information, and (2) counsel
Id. at 103. However, this case is not comparable to Waterhouse because Rivera's counsel during the initial postconviction proceedings did not rely on any reports that contained incorrect information, but rather were either in possession, or through the exercise of due diligence should have been in possession, of the information now relied on by Rivera during the relevant time period.
Similarly, Rivera's reliance on Lightbourne v. State, 742 So.2d 238 (Fla.1999), is misplaced. In Lightbourne, counsel testified they diligently searched for a witness during a prior proceeding. Id. at 245-46. The State asserted that a search of the National Crime Information Center (NCIC) would have revealed the location of the witness. Id. at 246. This Court noted that whether counsel was entitled to NCIC records was inconclusive in the record, and the State had asserted in another case that NCIC records were not available through a public records request. Id. The Court held that the testimony of the witness was not procedurally barred in the successive motion for postconviction relief. Id. However, here, unlike in Lightbourne, Rivera has not established that the documents relied on in this motion were unavailable to counsel during the initial postconviction proceedings. Further, the State below presented competent, substantial evidence that the documents, and information that reasonably should have led to the discovery of the documents, were disclosed to Rivera's initial postconviction counsel.
With respect to the plea offer, Bailey testified it was disclosed to Rivera in multiple files:
She also testified that nothing was withheld from one of the files that included the plea offer:
This constitutes competent, substantial evidence that supports the finding of the postconviction court that Rivera was in possession of the plea offer during his initial postconviction proceedings.
With respect to the documents Rivera relies on to assert Zuccarello was a CI or received undisclosed benefits from the State, including the prisoner receipts and the jail records, Rivera's initial postconviction counsel also possessed sufficient information to raise this claim. Indeed, during the initial postconviction proceedings, Rivera alleged that the "jailhouse snitches" who testified during his trial were offered leniency in exchange for their testimony, and specifically that Zuccarello acted as a professional informant. Moreover, both
Additionally, during the evidentiary hearing, the State presented evidence that the Jay Richitelli file included a letter in which the assistant state attorney wrote to counsel for Richitelli, "I know of no confidential informant in your client's case; at the time of the report, Mr. Zuccarello was referred to as an informant, but that is not now the case." The State also presented evidence that a deposition of a Miami-Dade Police Department officer was disclosed that discussed efforts by Zuccarello to negotiate with law enforcement. For example, the officer stated in the deposition that Zuccarello
The officer also stated during the deposition, "[i]t was an ongoing negotiation and I don't know when he got his plea." Thus, with regard to Zuccarello's involvement with law enforcement, this information was available to postconviction counsel, and Rivera has failed to establish due diligence.
With respect to the Rios interrogation report, Rios interrogated Rivera during the investigation, and both trial and initial postconviction counsel were aware of this interrogation. Additionally, Rivera's initial postconviction counsel subpoenaed Rios, but released him from the subpoena without questioning. Simply questioning Rios before trial or in 1994 would have led to the information on which the current claim is based. Thus, we conclude Rivera failed to establish due diligence with respect to this claim.
Although we conclude Rivera has failed to establish due diligence with respect to the claims raised in his successive postconviction motion, we also address the merits of these claims and conclude that Rivera is not entitled to relief.
To establish a claim for relief under Giglio, the defendant must demonstrate that (1) the prosecutor either presented or failed to correct false testimony, (2) the prosecutor knew the testimony was false, and (3) the evidence was material. See Jones v. State, 998 So.2d 573, 580 (Fla.2008). If the defendant establishes the first two prongs, then the evidence is deemed material if there is any reasonable possibility that it could have affected the verdict, and the State bears the burden of proving the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt. Id. In reviewing Giglio claims, we employ a mixed standard of review under which findings of fact are reviewed for competent, substantial evidence, and whether the facts are sufficient to establish each element of the test is reviewed de novo. Id.
Rivera's Giglio claim relates to the Zuccarello plea offer and his alleged status as a CI. During Rivera's trial, Zuccarello testified that he notified law enforcement of inculpatory statements by Rivera because he believed what Rivera did "was a sick
During the evidentiary hearing, the State presented Bruce Raticoff, who represented Zuccarello when the plea offer was extended. Raticoff testified that his understanding of the plea deal was that Zuccarello would cooperate with any and all law enforcement officers, predominantly in the Cohen homicide, and provide information regarding his and his codefendants' participation in other home invasions. To Raticoff's knowledge, the paragraph that required Zuccarello to continue to cooperate with law enforcement did not pertain to his involvement in Rivera's case. Indeed, Raticoff did not recall any mention of Rivera during his discussions of the deal with Zuccarello. Additionally, when asked whether any preferential treatment Zuccarello received in jail had anything to do with the Rivera case, Raticoff testified it did not. Although Raticoff testified that he was not aware of the "nuts and bolts" of the deal, and was deliberately unaware of what Zuccarello discussed with law enforcement, he consistently testified that he did not understand the plea deal to include the testimony against Rivera.
With respect to timing, the plea was entered into on June 12, 1986, and Zuccarello was sentenced on March 13, 1987. Thus, both of these events preceded Rivera's trial, which occurred in April 1987. A motion to mitigate sentence filed by Zuccarello was granted on May 12, 1987. Zuccarello testified during Rivera's trial that although nothing was promised to him for his testimony against Rivera, he hoped
During the evidentiary hearing, the State also presented Kelly Hancock, who prosecuted Rivera. Hancock testified that he was not a party to any of the conditions in the plea agreement, Zuccarello did not cooperate with him in exchange for more lenient treatment, and he was not aware of the plea during his prosecution of Rivera. Hancock also did not recall the plea offer, but testified that he had an open-file policy and if the plea was in the file, it would have been available to the defense. Although Zuccarello contacted Hancock after Rivera's trial regarding an incentive program, and Hancock wrote a letter requesting that Zuccarello be placed in the program, Hancock asserted that this was not a reward for the testimony against Rivera.
The postconviction court found that the plea offer did not pertain to Zuccarello's testimony against Rivera. This finding is supported by competent, substantial evidence. Raticoff repeatedly testified that the purpose of the plea offer was to secure Zuccarello's cooperation with respect to home invasion robberies and the Cohen homicide, and did not encompass the testimony in this case. Accordingly, the record below supports a conclusion that Zuccarello did not falsely testify when he stated he received no deal or promise in return for his testimony against Rivera, and Rivera has failed to demonstrate a Giglio violation based on the plea agreement. See Wyatt v. State, 71 So.3d 86, 107 (Fla.2011).
Rivera also alleges a Giglio violation based on three documents that refer to Zuccarello as a CI, and four prisoner receipts tracking his release from jail into the custody of various law enforcement officers. With respect to the CI documents, the synopsis of a conversation written by Detective Gross states, in relevant part:
(Emphasis supplied.) Another report prepared by Detective Gross relates to the April 18, 1986, interview with Zuccarello concerning various home invasion robberies. This interview also occurred both at the robbery office and on location. The first paragraph of the report states: "1. Frank (alternatively referred herein as the CI)...." The final, unnamed document lists information purportedly provided by Zuccarello regarding a number of crimes, not including Rivera's case, and throughout the document, that individual is referred to as "CI" or "the CI." With respect to the prisoner receipts, they indicate that Zuccarello was taken out of the jail on April 1, 1986; April 4, 1986; April 17, 1986 (specifically into the custody of Detective Argentine); and July 17, 1986 (into the custody of Detective Amabile).
The postconviction court found that Zuccarello was not a CI, and this finding is supported by competent, substantial evidence. Not only did Zuccarello's attorney testify he had no knowledge of Zuccarello acting as a CI, one of the documents explicitly states that Zuccarello was referred to as a CI simply for brevity. Accordingly, because Rivera has failed to establish that Zuccarello was a CI, he has failed to establish a Giglio violation. See Wyatt, 71 So.3d at 107.
To establish a Brady violation, the defendant must show that (1) favorable impeachment or exculpatory evidence, (2) was willfully or inadvertently suppressed by the State, and (3) the evidence was material, resulting in prejudice to the defendant. Franqui v. State, 59 So.3d 82, 101 (Fla.2011). To establish the materiality prong, a defendant must demonstrate a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. In other words, evidence is material under Brady only if it undermines confidence in the verdict. Id. at 102.
Rivera alleges Brady violations on several documents that relate to Zuccarello's relationship with law enforcement, including the plea offer, two
However, Zuccarello's motive for testifying was explored during trial. Zuccarello testified that he was convicted for twenty-three felonies — including armed robbery, armed burglary, aggravated assault, home invasion, and resisting arrest — which he pled guilty to pursuant to a plea deal that provided for only a seven-year sentence.
Additionally, during trial, John Meham, another inmate at the Broward County Jail, testified that Zuccarello and another jailhouse informant who testified against Rivera, William Moyer, attempted to gather information about Rivera to provide to law enforcement. Specifically, Meham testified that he "asked [Moyer] if [Rivera] ever told [Moyer] anything. [Moyer] said no, but Frank Zuccarello, and [another inmate], they got together, I guess, corroborated and was making a deal with the State for what the State wanted to hear to come in here." Meham also testified that Rivera did not speak to anyone about his case.
Thus, Zuccarello's testimony was significantly impeached during trial. The jury was aware that he entered into a plea agreement, did not expect to be incarcerated for more than two and a half years despite the large number of serious felony convictions, and hoped to receive a benefit from his testimony, although none was promised. Additionally, Rivera presented evidence during trial to suggest law enforcement solicited information from the jailhouse informants. We conclude that evidence of the actual plea offer and other documents Rivera alleges would have impeached Zuccarello and law enforcement would have been largely cumulative to the existing impeachment, and therefore Rivera has failed to establish that it is material. See Overton v. State, 976 So.2d 536, 563 (Fla.2007). Moreover, as described under the claim regarding newly discovered DNA evidence, the evidence of guilt against Rivera was simply overwhelming, and these documents do not undermine our confidence in the outcome of Rivera's trial. Franqui, 59 So.3d at 102.
Rivera also alleges a Brady violation based on the Rios report. However, he fails to establish how the report is material. The postconviction court found that all interrogation ceased once Rivera invoked his right to counsel, and this finding is supported by competent, substantial evidence. Rios did not testify during Rivera's trial, nor were any statements made by Rivera during the Rios interrogation presented during trial. Thus, the report does not undermine confidence in the out-come of the trial.
This Court has explained that to succeed on a newly discovered evidence claim, the defendant must establish that (1) the evidence was not or through the exercise of due diligence could not have been known to the trial court, party, or counsel during the trial, and (2) the evidence is of such a nature that it would probably produce an acquittal on retrial. Swafford v. State, 125 So.3d 760, 767 (Fla. 2013) (citing Jones v. State (Jones II), 709 So.2d 512, 521 (Fla.1998)). The second prong is satisfied if the evidence establishes a reasonable doubt as to the defendant's culpability. Id. (citing Jones II, 709 So.2d at 526). To evaluate a newly discovered evidence claim, the trial court must consider all admissible newly discovered evidence and weigh the evidence together with that which was introduced during trial. Id. (citing Jones v. State (Jones I), 591 So.2d 911, 915 (Fla.1991)). The trial court must determine
Id. (quoting Jones II, 709 So.2d at 521). This Court reviews the postconviction court's findings of fact, and findings on the credibility of witnesses and the weight of the evidence, for competent, substantial evidence. Id. (citing Green v. State, 975 So.2d 1090, 1100 (Fla.2008)). However, this Court reviews the application of the law to the facts de novo. Id.
It is undisputed that the DNA test results that establish that the hair found in Peters's van did not belong to Staci constitute newly discovered evidence. Prior to trial, a hair consistent with that of Staci was found in Mark Peters's van. The hair was relied on by the State during trial as evidence of Rivera's guilt. Specifically, the prosecutor remarked during opening statements that the hair found in the van was compared with that of Staci and found to be similar. During trial, the hair comparison expert testified that it was his "scientific opinion that the hair from the bed of the van could be concluded as being a source from the victim, item number five, which was the head hair sample of the victim." Nonetheless, during opening statements and the expert's testimony, the caveat was added that such comparisons were not definitive. Indeed, during cross-examination, the expert testified:
The limited value of the hair comparison was also emphasized by defense counsel during closing statements.
Rivera asserts that the newly discovered DNA evidence, together with all other evidence presented during trial and the postconviction proceedings, including Mark Peters's testimony that he was in possession of the van during the time Staci was abducted, establishes that Rivera did not commit the murder. We disagree. The DNA evidence simply confirms the possibility that was asserted during trial that the hair did not belong to Staci. Notably, the evidence is not exculpatory in nature, nor does it establish that Staci was never in contact with Rivera or in Peters's van. Moreover, the State presented ample evidence during trial that Rivera committed the murder, including the testimony of two non-jailhouse witnesses to whom Rivera confessed. Starr Peck testified that Rivera admitted to killing Staci, and a second woman testified that Rivera told her that Staci was gone and would not be found. Additionally, the jury heard testimony that Rivera exposed himself to numerous girls between the ages of ten and twenty years old; he thought about forcing young girls to have sex with him; he admitted that he exposed himself to a girl on a bicycle;
Based on the foregoing, we affirm the postconviction court's order denying successive postconviction relief on those claims that were remanded for an evidentiary hearing in Rivera IV.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
PARIENTE and CANADY, JJ., concur in result.
