Michael T. Rivera v. State of Florida
Michael T. Rivera v. State of Florida
Opinion
This case is before the Court on appeal from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction *922 of the appeal under article V, section 3(b)(1) of the Florida Constitution.
FACTS AND BACKGROUND
Michael T. Rivera was convicted of first-degree murder and was sentenced to death.
Rivera v. State
(
Rivera I
),
Eleven-year-old Staci Lynn Jazvac left her Lauderdale Lakes home on bicycle at about 5:30 p.m. on January 30, 1986, to purchase poster board at a nearby shopping center. A cashier recalled having sold her a poster board between 6:30 and 7:00 p.m. When Staci failed to return by dusk, her mother began to search. At about 7:30 p.m. the mother encountered a Broward County Deputy Sheriff, who had Staci's bicycle in the trunk of his car. The deputy found the bicycle abandoned in a field alongside the shopping center. A police investigation ensued.
Police first connected Michael Rivera to Staci's murder through a complaint filed by Starr Peck, a Pompano Beach resident. She testified that she had received approximately thirty telephone calls during September 1985 from a man who identified himself as "Tony." He would discuss his sexual fantasies and describe the women's clothing he wore, such as pantyhose and one-piece body suit. She received the last telephone call from "Tony" after Staci's murder. Ms. Peck testified that he said he had "done something very terrible.... I'm sure you've heard about the girl Staci.... I killed her and I didn't mean to.... I had a notion to go out and expose myself. I saw this girl getting off her bike and I went up behind her." She testified that he had admitted putting ether over Staci and dragging her into the back of the van where he sexually assaulted her. Rivera had been employed by Starr Peck, and she identified him as "Tony."
On February 13, Detectives Richard Scheff and Phillip Amabile of the Broward County Sheriff's Department took Rivera into custody on unrelated outstanding warrants and transported him to headquarters where they told him that they wanted to speak to him. Detective Scheff testified that Rivera responded, "If I talk to you guys, I'll spend the next 20 years in jail." After reading Rivera his Miranda rights,[n.2] Detective Scheff told Rivera that someone had advised them that Rivera had information about the disappearance of Staci Jazvac. The detective testified that Rivera admitted making the obscene phone calls to Starr Peck but denied having abducted or murdered Staci.
[n.2] Miranda v. Arizona ,384 U.S. 436 ,86 S.Ct. 1602 ,16 L.Ed.2d 694 (1966).
In subsequent interviews, Rivera admitted that he liked exposing himself to girls between ten and twenty years of age. He preferred the Coral Springs area because its open fields reduced the likelihood of getting caught. He would often borrow a friend's van and commented that "every time I get in a vehicle, I do something terrible." Rivera then admitted to two incidents. In one, he said he had exposed himself to a girl pushing a bike. When asked what he did with her, Rivera replied: "Tom, I can't tell you. I don't want to go to jail. They'll kill me for what I've done." In the other, he said he had grabbed another young girl and pulled her into some bushes near a Coral Springs apartment complex.
Staci's body was discovered on February 14 in an open field in the city of Coral Springs, several miles from the site of the abduction. Dr. Ronald Keith *923 Wright, a forensic pathologist, testified that most of the upper part of the body had decomposed and that the body was undergoing early skeletonization. The doctor concluded that death was a homicide caused by asphyxiation, which he attributed to ether or choking.
Dr. Wright observed that the body was completely clothed, although the jeans were unzipped and partially pulled down about the hips, and the panties were partially torn. Dr. Wright opined that this could be the result of the expansion of gasses during decomposition and not sexual molestation. He was unable to determine whether she was sexually assaulted. He discovered a bruise on the middle of the forehead that occurred before death, but he could not testify with certainty as to the cause. He also observed a broken fingernail on her right hand index finger, which he could not interpret as evidence of a struggle. Dr. Wright believed that the body was carried to the field and dumped, and at that time Staci was either dead or unconscious.
The jury heard testimony from several of Rivera's fellow inmates. Frank Zuccarello testified that Rivera admitted that he had choked another child, Jennifer Goetz, in the same way he had choked Staci; that Rivera said he had tried to kill Jennifer but was frightened away; and that Rivera said he had taken Staci to the field where she screamed and resisted, and he choked her to death after things got out of hand. Rivera also admitted that he told Starr Peck that he had murdered Staci, saying that confiding in her was the biggest mistake of his life. William Moyer testified that Rivera had stated to him: "You know, Bill, I didn't do it, but Tony did it." He later overheard Rivera call Starr Peck and identify himself as "Tony." Peter Salerno testified that Rivera told him: "I didn't mean to kill the little Staci girl. I just wanted to look at her and play with her."
A manager of a Plantation restaurant testified that he had received over two hundred telephone calls during a two-year period from an anonymous male caller. On February 7, the Friday before Staci's body was discovered, the caller identified himself as "Tony" and said that he "had that Staci girl" while wearing pantyhose, and that he had put an ether rag over her face.
The jury returned a verdict of guilty as charged.
During the penalty phase, the state introduced evidence of prior convictions.[n.3] Rivera introduced the testimony of his sisters, Elisa and Miriam, through whom the jury learned that Rivera was himself the victim of child molestation. Rivera's present girlfriend testified that she had no concerns about leaving him with her children. Rivera's former girlfriend was allowed to testify under an alias. She expressed the opinion that Rivera had two personalities. Through Michael he demonstrated a good side and through "Tony" he exposed his dark side which compelled him to do terrible things.
[n.3] On November 6, 1986, Rivera was convicted of attempted first-degree murder, kidnapping, aggravated child abuse, and aggravated battery. The state conceded that those crimes were on appeal. However, there were other felonies involving the use or threat of violence of which Rivera stood convicted and which were not on appeal. They include the October 1980 crimes of burglary with intent to commit battery and of indecent assault on a female child under the age of fourteen.
Dr. Patsy Ceros-Livingston, a clinical psychologist, interviewed Rivera in jail.
*924 She diagnosed Rivera as having a borderline personality disorder, which is characterized by impulsivity, a pattern of unstable and intense interpersonal relationships, lack of control of anger, identity disturbance, affective instability, intolerance of being alone, and physically self-damaging acts. The doctor also diagnosed exhibitionism, voyeurism, and transvestism.
Dr. Ceros-Livingston opined that Rivera acted under extreme duress and that he had some special compulsive characteristics that substantially impaired his capacity to appreciate the criminality of his conduct or to conform this conduct to the requirement of the law.
The jury unanimously recommended the death penalty. The trial judge found four aggravating circumstances,[n.4] one statutory mitigating circumstance,[n.5] and no nonstatutory mitigating circumstances.
[n.4] § 921.141(5)(b), (d), (h), (i), Fla. Stat. (1985) (previous conviction of felony involving the threat or use of violence; murder committed during the commission of an enumerated felony; murder especially heinous, atrocious, or cruel; and murder committed in a cold, calculated, and premeditated manner [ 1 ] ).
[n.5] § 921.141(6)(b), Fla. Stat. (1985) (defendant under the influence of extreme mental or emotional disturbance).
We affirmed the denial of Rivera's initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 on all claims but that of the penalty phase effectiveness of counsel, which we reversed and remanded for an evidentiary hearing.
Rivera v. State
(
Rivera II
),
Rivera filed his first successive motion for postconviction relief pursuant to rule 3.850, which the postconviction court denied.
Rivera v. State
(
Rivera IV
),
After our release of
Hurst v. State
,
ANALYSIS
I.
In his first claim, Rivera contends that the postconviction court erred in denying his motion for enlargement of the page limitation. Rivera also contends that the postconviction court violated his due process rights by failing to hold a case management conference, pursuant to
Huff v. State
,
A.
Rivera argues that the postconviction court's denial of his motion to exceed page limitation deprived him of equal protection, asserting in part that other capital defendants were allowed to file successive postconviction motions in excess of twenty-five pages. In doing so, he takes issue with rule 3.851 itself as much as with the postconviction court's denial of that motion. See Initial Br. 11 ("There is no page limitation on successive 3.850 motions. It defies logic to impose a page limitation in a capital case when one is not imposed in a non-capital case.").
We review discretionary decisions made by trial judges under an abuse of discretion standard.
Bryant v. State
,
Florida Rule of Criminal Procedure 3.851(e)(2) states that a successive motion for postconviction relief shall not exceed twenty-five pages. Fla. R. Crim. P. 3.851(e)(2). Here, Rivera filed a motion to exceed the page limitation, which requested permission to file a twenty-nine page successive motion for postconviction relief, stating that a page enlargement was necessary because "[t]he procedural, factual, and legal aspects of Rivera's Hurst claim are complex, particularly given the size of the record in this case and its lengthy procedural history." The State objected to the motion, arguing that, because Hurst is inapplicable to Rivera's case, there was no *926 good cause to exceed the page limit, which the State claimed would actually be in excess of twenty-nine pages due to the use of smaller font size on twenty of those pages. The postconviction court ultimately denied Rivera's motion.
Given that Rivera's conviction and death sentence became final well before
Ring v. Arizona
,
B.
Next, Rivera asserts that the postconviction court's failure to hold a case management conference denied him due process. In Huff , we stated:
Because of the severity of punishment at issue in a death penalty postconviction case, we have determined that henceforth the judge must allow the attorneys the opportunity to appear before the court and be heard on an initial 3.850 motion. This does not mean that the judge must conduct an evidentiary hearing in all death penalty postconviction cases. Instead, the hearing before the judge is for the purpose of determining whether an evidentiary hearing is required and to hear legal argument relating to the motion.
Nevertheless, in
Groover v. State
,
Here, the postconviction motion at issue is Rivera's second successive postconviction motion. Moreover, as discussed below, the postconviction court below properly found that Rivera's successive postconviction motion was without merit.
*927
Rivera's jury unanimously recommended a sentence of death, and his case became final on September 22, 1990-well before
Ring.
The instant successive motion for postconviction relief is entirely based on Rivera's supposed entitlement to relief under
Hurst.
Because Rivera's conviction and sentence were final long before
Ring
was issued, our precedent makes it clear that he is not entitled to any
Hurst
relief.
See, e.g.
,
Hitchcock
,
II.
In his second claim, Rivera attempts to circumvent our decision on the retroactivity of Hurst by dubbing the death penalty statute as substantive, rather than procedural. In doing so, Rivera cites to Fiore 4 and In re Winship 5 in support of his argument that Hurst relief should be applied retroactively because the substantive aggravators were present in the statute since its creation, thus warranting full retroactive application of Hurst. These arguments, however, are "nothing more than arguments that Hurst v. State should be applied retroactively to [Rivera's] sentence, which became final prior to Ring. As such, these arguments were rejected when [this Court] decided Asay. " Hitchcock , 226 So.3d at 217. Therefore, we conclude that this claim is meritless, based on our clear and repeated precedent on the retroactive application of Hurst.
As we recently explained in
Foster v. State
, No. SC18-860,
[T]he Hurst penalty phase findings are not elements of the capital felony of first-degree murder. Rather, they are findings required of a jury: (1) before the court can impose the death penalty for first-degree murder, and (2) only after a conviction or adjudication of guilt for first-degree murder has occurred. Thus, Foster's jury did find all of the elements necessary to convict him of the capital felony of first-degree murder-during the guilt phase.
In sum, a conviction for first-degree murder, a capital felony, solely consists of the jury having unanimously found the elements set forth in the substantive first-degree murder statute and the relevant jury instruction. The conviction for first-degree murder must occur before and independently of the penalty-phase findings required by Hurst and its related legislative enactments. The Florida Statutes clearly establish the elements of first-degree murder required for a conviction, and upon conviction , the required findings in order to sentence a defendant to the death penalty. There is *928 no, as Foster asserts, greater offense of "capital first-degree murder." Foster's guilt-phase jury considered all of the elements necessary to convict him of first-degree murder, a capital felony. Thus, his due process argument fails.
Moreover, in
Asay
, we made it clear that
Hurst
would not be applied retroactively to death defendants whose cases became final before
Ring.
210 So.3d at 22. Similarly, in
Hitchcock
, we again made it clear that
Hurst
would not have retroactive application to defendants whose death sentences were final when the Supreme Court decided
Ring.
226 So.3d at 217 (citing
Zack
,
III.
Next, Rivera attempts to revive his previously extinguished claim of newly discovered evidence. This Court, in
Rivera V
, denied Rivera's claim of newly discovered DNA evidence relating to hair testing.
Nevertheless, even if this claim of Rivera's successive motion for postconviction relief is not procedurally barred, it is meritless. Rivera attempts to argue that the requirement under
Mosley v. State
,
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 *929 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; and he previously attacked a girl the same age as Staci. Thus, we conclude the newly discovered DNA evidence is not of such a nature that it would probably produce an acquittal on retrial, and we affirm the denial of this claim.
Rivera V
,
IV.
Finally, Rivera asserts a bare-bones argument that seems to reiterate what was already asserted in Issue III-namely, that the alleged newly discovered exculpatory evidence demonstrates that the jury considered materially inaccurate evidence, which does not comport with Eighth Amendment requirements for the imposition of death. However, Rivera presents no legitimate or discernible argument within the limited analysis presented in his brief as to how his death sentence offends the Eighth Amendment. Instead, he seemingly asserts that this Court cannot deny Rivera's claims "simply because a case is old." Initial Br. 31. Therefore, as an initial matter, we conclude that this issue was insufficiently pled.
See
Heath v. State
,
Nevertheless, we also conclude that this claim fails on the merits. As mentioned above, Rivera attempts to argue that the need for reliable death sentences does not go away simply because a case was tried in 1986. This flawed logic, however, ignores the fact that we considered-and rejected-Rivera's claims of newly discovered evidence that were raised pursuant to evolving scientific capabilities with regard to hair sample testing. This consideration, and the ultimate result, indicate that the reliability of Rivera's death sentence was not so diminished as to raise Eighth Amendment concerns. Further, as explained in Issue III, we again *930 conclude that the "materially inaccurate" information presented to the jury was not of such a nature that it would produce an acquittal on retrial or the imposition of a lesser sentence, in light of the distinct and overwhelming evidence of Rivera's guilt presented at trial-even post- Hurst. Therefore, we conclude that the jury's pre- Ring , unanimous recommendation of death is not unreliable or in violation of the Eighth Amendment, even in light of the limited testimony presented to the jury erroneously linking one hair sample recovered from the van to the victim.
CONCLUSION
For the reasons set forth above, we affirm the postconviction court's denial of Rivera's successive motion for postconviction relief.
It is so ordered.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE JANUARY 2, 2019.
LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. CANADY, C.J., and PARIENTE, J., concur in result.
We later struck the cold, calculated, and premeditated aggravating factor on direct appeal.
Rivera I
,
Brady v. Maryland
,
Giglio v. United States
,
Fiore v. White
,
In re Winship
,
Given the overwhelming evidence of guilt presented at trial, the postconviction court's order in Rivera V also explicitly detailed numerous reasons for the denial of Rivera's newly discovered evidence claim, due to the unlikely probability of receiving a lesser sentence on retrial: (1) The jury knew that the hair found near the victim's body did not belong to Rivera, making the additional hair testing results cumulative; (2) the jury heard testimony that Rivera used a different truck at the time of the murder than the van law enforcement knew about; and (3) the jury heard testimony about Rivera's confessions to Starr Peck, Angela Greene, and three inmates, and about his incriminating statements to law enforcement officers. Even in the post- Hurst death penalty scheme, we agree with the postconviction court in Rivera V that the DNA evidence does not create a reasonable doubt with respect to Rivera's guilt.
Reference
- Full Case Name
- Michael T. RIVERA, Appellant, v. STATE of Florida, Appellee.
- Cited By
- 2 cases
- Status
- Published