| [1] | Supreme Court of Florida |
| [2] | No. 70563 |
| [3] | 561 So.2d 536, 1990.FL.0042001 <http://www.versuslaw.com> |
| [4] | April 19, 1990 |
| [5] | MICHAEL T. RIVERA, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | H. Dohn William, Jr., Sp. Public Defender, Fort Lauderdale, for
appellant. Robert A. Butterworth, Atty. Gen., and Joan Fowler, Asst. Atty.
Gen., West Palm Beach, for appellee. |
| [7] | The opinion of the court was delivered by: Barkett,
Justice. |
| [8] | Rehearing Denied June 22, 1990 |
| [9] | Michael T. Rivera appeals his conviction for
first-degree murder and the sentence of death.*fn1
We affirm both the conviction and sentence. |
| [10] | 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. |
| [11] | 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." |
| [12] | 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,*fn2
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. |
| [13] | 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. |
| [14] | 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 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. |
| [15] | 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. |
| [16] | 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." |
| [17] | 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. |
| [18] | The jury returned a verdict of guilty as charged. |
| [19] | During the penalty phase, the state introduced evidence of prior
convictions.*fn3
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. |
| [20] | Dr. Patsy Ceros-Livingston, a clinical psychologist, interviewed
Rivera in jail. 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. |
| [21] | 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. |
| [22] | The jury unanimously recommended the death penalty. The trial judge
found four aggravating circumstances,*fn4
one statutory mitigating circumstance,*fn5
and no non-statutory mitigating circumstances. |
| [23] | Rivera claims that two trial court errors in the guilt
phase of his trial mandate reversal. First, Rivera contends
that the introduction of evidence in the state's case-in-chief regarding
the sexual assault upon Jennifer Goetz violated the rule of Williams v.
State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4
L.Ed.2d 86 (1959), and the Florida Evidence Code.*fn6 |
| [24] | In this case, the material issue to be resolved by the similar fact
evidence was identity. Rivera relies upon Drake v. State,
400 So.2d 1217 (Fla.1981), and argues that the similarities between the
two crimes were not of a "special character" or "so unusual" as to point
to him. We reject that argument and find Drake distinguishable. There the
only similarity between the two crimes was that the two victims had their
hands tied behind their backs and left a bar with the defendant. Id. at
1219. |
| [25] | Here, there were numerous similarities between the two crimes. Both
victims were eleven years of age, caucasian, with blond hair. Both were
similar in stature, small and petite. Both were alone and approached from
behind. Both abductions occurred during daylight, and within four miles of
Rivera's home. After each crime, individuals received phone
calls from a man who identified himself as "Tony" and who stated that he
was wearing pantyhose and leotards and had fantasized about raping young
girls.*fn7 |
| [26] | We find that the similarities between the two crimes establish "a
sufficiently unique pattern of criminal activity" to justify the admission
of collateral crime evidence on the disputed, material issue of identity.
Chandler v. State, 442 So.2d 171, 173 (Fla.1983). Moreover, we do not find
that the evidence of this crime became a major feature of the trial. Burr
v. State, 466 So.2d 1051, 1053 (Fla.), cert. denied, 474 U.S. 879, 106
S.Ct. 201, 88 L.Ed.2d 170 (1985). |
| [27] | Second, Rivera contends that the trial court improperly
excluded "reverse" Williams rule evidence. Through proffered testimony,
Rivera attempted to establish that a crime of a similar
nature had been committed by another person. |
| [28] | Although the question of the admissibility of "reverse Williams Rule"
evidence by a defendant appears to be one of first impression for this
Court, the Third District in Moreno v. State, 418 So.2d 1223, 1225 (Fla.
3d DCA 1982), has permitted it on the basis that an accused may show his
or her innocence by proof of the guilt of another. That view has been
adopted by the First District in Brown v. State, 513 So.2d 213, 215 (Fla.
1st DCA 1987), dismissed, 520 So.2d 583 (Fla.1988): |
| [29] | While most cases generally involve the offer of similar fact evidence
by the prosecution against a defendant in a criminal case, there is
nothing in the language of [section 90.404(2)(a), Florida Statutes (1985)
] which precludes the use of evidence offered by a defendant in a criminal
case, or by a party in a civil action. See C. Ehrhardt, Florida Evidence §
404.9 (2d ed. 1984). (Footnote omitted.) |
| [30] | Other jurisdictions also have held that defendants may introduce
similar fact evidence. See, e.g., Commonwealth v. Keizer, 377 Mass. 264,
385 N.E.2d 1001 (1979) (reaffirming Commonwealth v. Murphy, 282 Mass. 593,
185 N.E. 486 (1933)); State v. Bock, 229 Minn. 449, 39 N.W.2d 887 (1949);
State v. Garfole, 76 N.J. 445, 388 A.2d 587 (1978). |
| [31] | We agree with the Third District Court in Moreno that where evidence
tends in any way, even indirectly, to establish a reasonable doubt of
defendant's guilt, it is error to deny its admission. § 90.404(2)(a),
Fla.Stat. (1985). However, the admissibility of this evidence must be
gauged by the same principle of relevancy as any other evidence offered by
the defendant. |
| [32] | In this case, Rivera sought to introduce evidence
pertaining to the February 20 abduction and murder of Linda Kalitan, which
occurred while Rivera was in custody. We find the
dissimilarity of this crime to Staci Jazvac's murder sufficient to
preclude its admissibility as relevant evidence. Linda Kalitan was
twenty-nine years of age, whereas Staci was eleven. Her body was fully
developed, whereas Staci's body was childlike. Linda's body was totally
nude except for a pair of socks, whereas Staci was clothed. Linda's body
was found in a canal and her clothing was weighted down by rocks. Although
both bodies were found in the same general location, Staci was found in
the vacant field. In Linda's case, there was evidence of anal sex prior to
her death, unlike Staci's case. Staci was abducted in northern Broward
County, and Linda was abducted in southwest Broward County. |
| [33] | The only alleged similarities were that both Staci and Linda were
riding bicycles when they were abducted; they were both asphyxiated;*fn8
their bodies were found in the same general area; and pantyhose was
discovered in the vicinity of their bodies.*fn9
Under these circumstances, we find that the trial court did not abuse its
discretion in excluding the proffered evidence. |
| [34] | Finally, Rivera contends that the death penalty is
disproportionate. Rivera concedes that there is a basis in
the record for finding the existence of two aggravating factors,*fn10
but contends that the two other factors found by the trial court were
unsupported by the record. First, Rivera disputes the
finding that the murder was especially heinous, atrocious, or cruel. We
find that the record conclusively supports the trial court's finding of
this factor beyond a reasonable doubt. Testimony established that
Rivera abducted Staci and took her to a field where he
sexually assaulted her. The testimony indicated that Staci screamed and
resisted Rivera until he was able to kill her by
asphyxiation. We have found that "fear and emotional strain preceding a
victim's almost instantaneous death may be considered as contributing to
the heinous nature of the capital felony." Adams v. State, 412 So.2d 850,
857 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148
(1982). We find sufficient evidence to support the finding that this
murder was especially heinous, atrocious, or cruel. |
| [35] | Second, Rivera argues that the murder was not cold,
calculated, and premeditated. Although Deputy Scheff testified that
Rivera had admitted fantasizing about raping young girls and
prowled neighborhoods in search of a victim, there was no evidence of any
prior intent to kill. Indeed, the only evidence on that question was to
the contrary. For instance, witnesses testified that Rivera
stated that he "didn't mean to kill the Staci girl," he "just wanted to
look at her and play with her"; he "had a notion to go out and expose
[himself]"; and he choked her to death only after things got out of hand.
The murder resulted only after the crime had escalated beyond its intended
purpose. The record does not support the finding of the heightened
premeditation necessary to prove this aggravating factor beyond a
reasonable doubt. |
| [36] | Finally, we find no merit to Rivera's claim that the
trial court erred in failing to find that Rivera acted under
extreme duress or under substantial domination of another, or that his
capacity to appreciate the criminality of his conduct or conform his
conduct to the requirements of law was substantially impaired. The trial
court did find that Rivera was under the influence of an
extreme mental or emotional disturbance. We conclude on this record that
the trial court was acting within the parameters of its discretion in
rejecting the additional mitigating factors. The trial court's findings
with regard to the existence or nonexistence of mitigating circumstances
are supported by substantial competent evidence. Bryan v. State, 533 So.2d
744, 749 (Fla.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104
L.Ed.2d 200 (1989). |
| [37] | We are left with three aggravating circumstances, which include
previous convictions of violent crimes and a finding that this murder was
heinous, atrocious, and cruel. On this record, we are persuaded that the
one mitigating factor weighed against the magnitude of the aggravating
factors would render the same result in the trial court below, absent the
single invalidated aggravating circumstance. |
| [38] | For these reasons, we affirm the conviction and imposition of the
death penalty. |
| [39] | It is so ordered. |
| [40] | EHRLICH, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ.,
concur. |
|
| |
| Opinion Footnotes | |
|
| |
| [41] | *fn1
Our jurisdiction is mandatory. Art. V, § 3(b)(1), Fla.
Const. |
| [42] | *fn2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). |
| [43] | *fn3
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. |
| [44] | *fn4
§ 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). |
| [45] | *fn5
§ 921.141(6)(b), Fla.Stat. (1985) (defendant under the influence of
extreme mental or emotional disturbance). |
| [46] | *fn6
Rivera asserts that the following section of the Code was
violated: Similar fact evidence of other crimes, wrongs, or acts is
admissible when relevant to prove a material fact in issue, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, but is inadmissible when the evidence is
relevant solely to prove bad character or propensity. § 90.404(2)(a),
Fla.Stat. (1985). |
| [47] | *fn7
A search of Rivera's residence produced items of female
clothing from under Rivera's bed and between the mattress,
including pantyhose. |
| [48] | *fn8
Although it was clear in Linda Kalitan's case that she was choked, in
Staci's case the medical examiner was not able to tell if the asphyxiation
was caused by ether or strangulation. |
| [49] | *fn9
A pair of soiled and weathered pantyhose was found approximately 300 yards
from the location where Linda's body was discovered. Among the items
collected in the area where Staci's body was discovered were eight pair of
pantyhose and thirteen packages of pantyhose. |
| [50] | *fn10
Those circumstances are conviction for a previous felony and murder
committed while engaged in an enumerated
felony. |