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Date: 06-22-2019
Case Style:
FAVIAN RIVERA vs STATE OF FLORIDA
Case Number: 17-1397
Judge: Michael S. Orfinger
Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
Plaintiff's Attorney: Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach
Defendant's Attorney: James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, and Amy Weber, Special Assistant Public Defender
Description:
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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
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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
1 Rivera was also convicted of aggravated assault with a firearm but does not challenge that conviction or sentence on appeal.
2 The dissent argues Rivera was required to specifically argue to the trial court that its ruling, restricting his right to cross-examine Soto about his plea deal, impaired his Sixth Amendment right to confront witnesses against him. Although Rivera did not specifically assert a Sixth Amendment violation, his attempt to cross-examine Soto on the full extent of his plea deal was clearly related to the right of confrontation, so much so that this Court may address the matter on its merits. See Evans v. State, 838 So. 2d 1090, 1097 n.5 (Fla. 2002) (per curiam) (finding failure to specifically assert Sixth Amendment violation
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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
will not preclude review where issue raised below “is closely related to the right of confrontation”), cert. denied, 540 U.S. 846 (2003).
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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 crossexamination 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 incourt 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
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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
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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
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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.”).
Outcome: 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.
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