FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Heather L. Higbee,
S. Purdy, Public Defender, and Kevin R. Holtz, Assistant
Public Defender, and Amy Weber, Special Assistant Public
Defender Daytona Beach, for Appellant.
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
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.
and his co-defendant, Brandon Soto, both juveniles, were
indicted for the first-degree premeditated murder of Hector
Jorge-Pabon. 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).
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. 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.
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
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
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)).
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).
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.").
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).
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).
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.").
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 ...