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Rivera v. State

Florida Court of Appeals, Fifth District

June 21, 2019

FAVIAN RIVERA, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Heather L. Higbee, Judge.

          James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, and Amy Weber, Special Assistant Public Defender Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

          Roseanne Eckert, of FIU College of Law, Miami, Amicus Curie for Juvenile Law Center and Florida Juvenile Resentencing and Review Project.

          ORFINGER, J.

         Favian Rivera seeks review of his conviction of first-degree murder with a firearm and sentence of life with no judicial sentencing review. We conclude the trial court unduly restricted Rivera's cross-examination of his co-defendant, a key State witness, and reverse.

         Rivera and his co-defendant, Brandon Soto, both juveniles, were indicted for the first-degree premeditated murder of Hector Jorge-Pabon.[1] Soto went to trial first and was found guilty of first-degree murder with special findings that he possessed and discharged a firearm that resulted in death. Post-verdict, in exchange for his testimony at Rivera's trial, Soto entered into an agreement with the State for a sentence of fifteen years in prison with a ten-year minimum mandatory term, thereby avoiding a forty-year to life sentence with judicial review after twenty-five years pursuant to the juvenile sentencing laws, sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

         At Rivera's trial, defense counsel sought to inform the jury about the specifics of Soto's plea deal. The trial court ruled that Rivera could elicit that Soto was convicted of first-degree murder and the agreed-upon fifteen-year sentence. However, the trial court denied defense counsel's request to advise the jury that Soto's conviction carried a potential forty-year to life sentence with a twenty-five-year minimum mandatory because the trial judge was concerned that this information would inform the jury of Rivera's potential sentence.[2] Rivera was subsequently found guilty of first-degree murder with special findings that he possessed and discharged a firearm that resulted in death. After an individualized sentencing hearing, he was sentenced to life in prison.

         As the State argues, as a general rule, jurors are not to be told of the potential sentence a defendant faces if convicted. See Fla. R. Crim. P. 3.390(a). This is to minimize the possibility of jury sympathy based on the defendant's potential sentence and to ensure that the jury decides the case according to the law and evidence presented, rather than the consequences of its verdict. Knight v. State, 919 So.2d 628, 634 (Fla. 3d DCA 2006). But against this procedural rule, we must weigh a criminal defendant's Sixth Amendment right to confront the witnesses against him, which includes wide latitude in cross-examining state witnesses, especially when cross-examining an accomplice or key prosecution witness. Elmer v. State, 114 So.3d 198, 201 (Fla. 5th DCA 2012); Powe v. State, 413 So.2d 1272, 1273 (Fla. 1st DCA 1982); Wolfe v. State, 190 So.2d 394, 395 (Fla. 1st DCA 1966) (explaining that policy of law is that accomplice's testimony is disfavored, subject to close scrutiny, and should be received with caution by jury since some persons charged with or convicted of crime are willing to wrongfully implicate others if by doing so, they may mitigate penalty against themselves).

         Cross-examination is often "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). While the trial court has broad discretion to impose reasonable limits on cross-examination when it is concerned about, "among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant," Moore v. State, 701 So.2d 545, 549 (Fla. 1997) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)), the court's discretion is constrained by a criminal defendant's Sixth Amendment rights and the rules of evidence, Patrick v. State, 104 So.3d 1046, 1057 (Fla. 2012).

         In Henry v. State, 123 So.3d 1167, 1169-70 (Fla. 4th DCA 2013), the Fourth District wrote:

"[T]he Sixth Amendment guarantees the right of an accused to attack a witness' credibility by means of cross-examination directed toward revealing possible biases or ulterior motives of the witness as they may relate to the case at hand." Smith v. State, 38 So.3d 871, 872 (Fla. 4th DCA 2010) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). "For purposes of discrediting a witness, a wide range of cross-examination is permitted as this is the traditional and constitutionally guaranteed method of exposing possible biases, prejudices and ulterior motives of a witness as they may relate to the issue or personalities . . . ." Strickland v. State, 498 So.2d 1350, 1352 (Fla. 1st DCA 1986) (citations omitted). "The vital importance of full and searching cross-examination is even clearer when, as here, the prosecution's case stands or falls on the jury's assessment of the credibility of the key witness[ ]." Id. (citing Wooten v. State, 464 So.2d 640 (Fla. 3d DCA 1985)). Under such circumstances, "[o]bviously, a defendant has a strong interest in discrediting a crucial state witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony." Livingston v. State, 678 So.2d 895, 897 (Fla. 4th DCA 1996) (citing Phillips v. State, 572 So.2d 16 (Fla. 4th DCA 1990)).

         The evidence code allows a party to attack a witness's credibility based on bias. § 90.608(2), Fla. Stat. (2014) ("Any party, including the party calling the witness, may attack the credibility of a witness by . . . [s]howing that the witness is biased."). Any relevant evidence tending to establish that a witness is appearing for the prosecution for any reason other than to tell the truth should not be kept from the jury. Holt v. State, 378 So.2d 106, 108 (Fla. 5th DCA 1980). Defendants may cross-examine a witness about the conditions of a plea bargain entered into between the state and the witness. Engram v. State, 405 So.2d 428, 429 (Fla. 1st DCA 1981) (citing Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976)). That examination includes inquiry into the specific nature of the pending charges against a cooperating state witness, see, e.g., Henry, 123 So.3d at 1170; Bell v. State, 614 So.2d 562, 564 (Fla. 3d DCA 1993), and how the pending criminal charges may have influenced the witness's cooperation with the state and the content of in-court statements, see Breedlove v. State, 580 So.2d 605, 608 (Fla. 1991); Pomeranz v. State, 634 So.2d 1145, 1146 (Fla. 4th DCA 1994).

         Here, Soto was convicted of first-degree murder with a firearm, the same charge that Rivera was facing. The court permitted evidence that Soto agreed to a fifteen-year sentence in exchange for his testimony against Rivera, but prohibited Rivera from informing the jury that without the fifteen-year plea agreement, Soto would have been sentenced to at least forty years, up to life, with eligibility for judicial review after twenty-five years. See Montgomery v. State, 230 So.3d 1256, 1262 (Fla. 5th DCA 2017). Thus, Rivera was not allowed to question Soto on the pertinent details of his plea agreement and establish his motive or bias in testifying against him-the mandatory sentence that Soto would (and believed that he would) receive in the absence of the plea agreement. See Fajardo v. State, 193 So.3d 1019, 1023-24 (Fla. 4th DCA 2016) (explaining that defendant's belief that he could get released and avoid deportation by assisting law enforcement was relevant to witness's bias, motive, and self-interest); see also United States v. Oliveros, 275 F.3d 1299, 1307 (11th Cir. 2001) ("When it comes to a witness' motive to lie, however, what counts is not the actual extent of the benefit the witness has received or will receive, but the witness' belief about what he is getting. . . . The bias of a witness is a subjective fact influenced by that witness' beliefs about the benefit he will receive if he testifies in a particular way and the value of it to him, which is measured by what he thinks will happen if he does not receive the benefit.").

         The exclusion of this evidence prevented Rivera from demonstrating the full extent of Soto's interest in the case and his motivation to testify consistent with the State's theory of prosecution. See, e.g., Henry, 123 So.3d at 1169 (holding that defendant's counsel was entitled to elicit evidence about degree of felony and maximum prison penalty witness faced to demonstrate his motive and bias to testify against defendant); Jackson v. State, 37 So.3d 370, 373 (Fla. 2d DCA 2010) (holding that trial court abused its discretion in prosecution for cocaine trafficking by refusing to allow defendant to cross-examine codefendants, who purchased cocaine from defendant, regarding length of maximum sentence or mandatory minimum prison term; codefendants pleaded guilty and testified against defendant in hopes of receiving more lenient sentences, and therefore, defendant had right to cross-examine on sentence length to reveal extent of bias, prejudice, or improper motive codefendants may have had in testifying); Powe, 413 So.2d at 1273 (reversing because trial court refused to allow defense counsel to inquire about minimum mandatory penalty that state's key witness avoided with guilty plea; witness's knowledge of penalty may have been significant factor in decision to testify against defendant).

         At the very least, the trial court should have allowed Rivera to inform the jury that Soto was facing a significantly more severe or substantial sentence in the absence of his plea agreement. See, e.g., United States v. Walley, 567 F.3d 354, 358-59 (8th Cir. 2009) (affirming limitation as jury was aware that prosecution witness faced possibility of "significant sentence" for criminal activity, and no indication that evidence of specific sentence would have given jury "significantly different impression" of witness's credibility). Limiting the cross-examination of a state witness violates the Sixth Amendment when, as here, a defendant shows that "[a] reasonable jury might have received a significantly different impression of [the witness's] credibility had [defense] counsel been permitted to pursue his proposed line of cross-examination" Van Arsdall, 475 U.S. at 680 Shielding the jury from such information is intended to prevent the jury from reaching a verdict based on sympathy for the defendant's plight contrary to their oath to render a verdict based only on the law and the evidence Such considerations, while entirely valid, do not outweigh Rivera's Sixth Amendment rights and do not justify keeping the details of Soto's agreement from the jury in the circumstances here "The human condition strongly suggests that a person may not be willing (or likely) to lie under oath if he expects his benefit to be 8 years in prison rather than 9, but his incentive to dissemble and falsify may increase exponentially if he expects to serve a couple of years in prison instead of a couple of decades" United States v Rushin, 844 F.3d 933, 942-43 (11th Cir 2016) (Jordan, J, concurring).

         We do not suggest that in every case such broad cross-examination is appropriate. But here, Soto was a key State witness and the only witness who could offer evidence of premeditation. Hence, we cannot conclude the error was harmless. The examination into and evidence of bias, motive or self-interest was clearly relevant and, if proven, could have impacted Soto's credibility. The State cannot prove beyond a reasonable doubt that the error did not contribute to Rivera's conviction. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986) ("The question is whether there is a reasonable possibility that the error affected the verdict.").

         For these reasons, we reverse Rivera's conviction for first-degree premeditated murder and remand for a new trial. Because we conclude that Rivera is entitled to a new trial, we need not address Rivera's other arguments regarding the constitutionality of the juvenile sentencing laws. See Singletary v. State, 322 So.2d 551, 552 (Fla. 1975) ("[C]ourts should not pass upon the constitutionality of ...


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