This proceeding involves the appeal of the circuit court's

denial of a post-conviction motion without an evidentiary

hearing. The following symbols will be used to designate

references to the record in this appeal:

"R." -- record on direct appeal to this Court;

“1PC-R.” -- record on appeal of denial of first Rule 3.850

motion;

"2PC-R." -- record on appeal of denial of first Rule 3.850

motion after remand;

“3PC-R., [Volume Title]” -- record on appeal of denial of

this second Rule 3.850 motion.

ii

Mr. Rivera has been sentenced to death. The resolution of

the issues involved in this action will therefore determine

whether he lives or dies. This Court has not hesitated to allow

oral argument in other capital cases in a similar procedural

posture. Lightbourne v. State, 742 So. 2d 238 (Fla. 1999);

Mills v. Moore, 786 So. 2d 532 (Fla. 2001) Swafford v. State,

828 So. 2d 966 (Fla. 2002); Roberts v. State, 840 So. 2d 962

(Fla. 2002); Wright v. State, 857 So. 2d 861 (Fla. 2003). A

full opportunity to air the issues through oral argument would

be more than appropriate in this case, given the seriousness of

the claims involved and the stakes at issue. Mr. Rivera,

through counsel, accordingly urges that the Court permit oral

argument.

iii

PRELIMINARY STATEMENT ........................................ i

REQUEST FOR ORAL ARGUMENT ................................... ii

TABLE OF CONTENTS .......................................... iii

TABLE OF AUTHORITIES ......................................... v

STATEMENT OF THE CASE ........................................ 1

STATEMENT OF THE FACTS ....................................... 3

A. NEW AND PREVIOUSLY UNDISCLOSED FACTS PRESENTED IN THE

SECOND RULE 3.850 MOTION......................... 3

B. RELEVANT FACTS FROM TRIAL.......................... 20

SUMMARY OF ARGUMENT ......................................... 33

STANDARD OF REVIEW .......................................... 35

ARGUMENT.................................................... 36

ARGUMENT I ............................................. 36

THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN DENYING

MR. RIVERA’S RULE 3.850 MOTION WITHOUT AN

EVIDENTIARY HEARING........................... 36

ARGUMENT II ............................................ 45

MR. RIVERA WAS DEPRIVED OF DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION WHEN THE PROSECUTION INTENTIONALLY

PERMITTED FALSE AND/OR MISLEADING EVIDENCE TO BE

PRESENTED TO MR. RIVERA’S JURY AND USED IT TO

OBTAIN A CONVICTION........................... 46

ARGUMENT III ........................................... 53

MR. RIVERA WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

UNDER THE FOURTEENTH AMENDMENT AS WELL AS HIS

RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH

AMENDMENTS, BECAUSE EITHER THE STATE FAILED TO

DISCLOSE EVIDENCE WHICH WAS MATERIAL AND

EXCULPATORY IN NATURE AND/OR PRESENTED MISLEADING

EVIDENCE AND/OR DEFENSE COUNSEL UNREASONABLY

FAILED TO DISCOVER AND PRESENT EXCULPATORY

iv

EVIDENCE AND/OR NEW EVIDENCE ESTABLISHES MANIFEST

INJUSTICE. ................................... 53

A. THE RECENTLY DISCOVERED INFORMATION WITHHELD

BY THE STATE............................. 55

B. CUMULATIVE ANALYSIS...................... 64

ARGUMENT IV ............................................ 73

THE RESULTS OF DNA TESTING CONSTITUTE NEWLY DISCOVERED

EVIDENCE THAT ESTABLISH MR. RIVERA’S ENTITLEMENT

TO A NEW TRIAL................................ 73

ARGUMENT V ............................................. 75

MR. RIVERA WAS DENIED A FAIR TRIAL AND POSTCONVICTION

PROCEEDING DUE TO JUDGE FERRIS’S BIAS AND

PREDETERMINATION OF THE ISSUES CONTRARY TO THE

SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS........ 76

CONCLUSION.................................................. 79

CERTIFICATE OF SERVICE ...................................... 79

CERTIFICATE OF COMPLIANCE ................................... 79

v

Alcorta v. Texas, 355 U.S. 28 (1957)......................... 51

Arbelaez v. State, 775 So. 2d 909 (Fla. 2000) ................ 36

Berger v. United States, 295 U.S. 78 (1935) .................. 50

Brady v. Maryland, 373 U.S. 83 (1963) ................ 42, 54, 63

Card v. State, 652 So. 2d 344 (Fla. 1995) .................... 36

Chambers v. Mississippi, 419 U.S. 284 (1973) ................. 60

Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001) ............... 50

Florida Bar v. Feinberg, 760 So.2d 933 (Fla. 2000) ........... 50

Garcia v. State, 622 So.2d 1325 (Fla. 1993) .................. 51

Gaskin v. State, 737 So. 2d 509 (Fla. 1999) .................. 36

Giglio v. United States, 405 U.S. 150 (1972) ......... 50, 52, 63

Gray v. Netherland, 518 U.S. 152 (1996)...................... 50

Guzman v. State, 868 So. 2d 498 (Fla. 2003) .......... 41, 50, 52

Jones v. State, 591 So.2d 911 (Fla. 1991) .................... 74

Keen v. State, 775 So. 2d 263 (Fla. 2000) .................... 20

Kyles v. Whitley, 514 U.S. 419 (1995) .................... 51, 55

Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989) ........... 36

Maharaj v. State, 684 So. 2d 726 (Fla. 1996) ................. 37

Mooney v. Holohan, 294 U.S. 103 (1935)................... 50, 51

Napue v. Illinois, 360 U.S. 264 (1959)................... 51, 63

Patton v. State, 784 So. 2d 380 (Fla. 2000) .................. 36

vi

Peede v. State, 748 So. 2d 253 (Fla. 1999) ................... 36

Rivera v. State, 547 So.2d 140 (Fla. 4th DCA 1989) ........... 77

Rivera v. State, 561 So. 2d 536 (Fla. 1990) ................... 1

Rivera v. State, 717 So. 2d 477 (Fla. 1998) ........... 1, 45, 66

Rivera v. State, 859 So. 2d 495 (Fla. 2003) ................... 2

Rogers v. State, 782 So.2d 373 (Fla. 2001) ................... 54

Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986) .......... 54

State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001) .............. 35

State v. Gunsby, 670 So. 2d 920 (Fla. 1996) .............. 64, 72

Stephens v. State, 748 So. 2d 1028 (Fla. 1999) ............... 35

Strickland v. Washington, 466 U.S. 668 (1984) ................ 54

United States v. Agurs, 427 U.S. 97 (1976) ................... 51

United States v. Bagley, 473 U.S. 667 (1985) ......... 51, 52, 54

1

On January 30, 1986, at about 6:15 PM, eleven year old

Staci Jazvac set off from her home for a nearby strip mall to

get paper at a store (R. 702-03). She was last seen by a store

clerk at “[a]bout 6:30, 7 o’clock” (R. 797). According to the

State’s theory of the case, Michael Rivera, while using a blue

van owned by his friend Mark Peters, abducted Staci as she

walked home following her purchase of paper, and that he killed

her in the blue van and dumped her body in an empty field where

was clad in jeans, a white nylon jacket and a white top (R. 897-

98, 913).

During the trial, the State focused on linking Staci to the

blue van and arguing that based upon his various statements that

Mr. Rivera was in possession of the blue van on the evening of

phone call that a sexually-troubled Mr. Rivera made on February

and that he had grabbed Staci, put her in the blue van, and

dumped her body in Lake Okeechobee (R. 1087-90).

The defense argued that the details in the obscene phone

call that Starr Pack received from “Tony” (Michael Rivera’s

alter ego) did not match the facts of the case - only the

information that was common knowledge from the newspaper

coverage (R. 1831-34). The defense argued that a troubled

Michael Rivera made statements based on “fantasy” (R. 1837).

“Tony” made obscene phone calls and made outrageous claims to

get attention (R. 1839-40). This was not unlike recent events

in the nationally known Jon Benet Ramsey case.

2

January 30, 1986. In this regard in his opening statement, the

prosecutor explained:

They also checked Mark Peters’ van, and you’ll

hear from Howard Seiden, who is with the Crime Lab,

and he’s an expert in hair examination.

He’ll tell you he found a hair in Mark Peter’s

van, a long hair, I think it was like six or seven

inches, and he compared that with the known hair of

Staci Jazvac and that they are similar.

He will not come in and say they are exactly the

same and they are Staci’s. You can’t do that in hair.

It’s not like fingerprints. He’ll say it is similar

to Staci Jazvac’s hair in the van.

would be evidence showing that a fingerprint found in the van

What’s important about Detective Edel is that he did

some vacuuming for the van. He did some vacuuming

and he told you where he did vacuuming.

He did vacuuming where? In back of this van. As a

result what does he find? He finds hair.

Now they have the standards of Staci. So he sends

those standards to Howard Seiden. You heard Howard

Seiden. It just so happens that hair was consistent

with Staci’s. He can’t say and he didn’t say it’s a

positive identification, but he says it’s consistent

with Staci Jazvac’s hair standard.

(R. 1793). In his rebuttal closing argument to the jury, the

prosecutor again argues: “And it just so happens that a hair

similar to Staci’s is found in the van”(R. 1866).

3

However, DNA testing conducted in 2003 has now

conclusively established that Staci was not the source of the

upon by the prosecutor to repeatedly link Staci to the blue van

In addition to the startling DNA results, Mr. Rivera’s

collateral counsel discovered in mid-2002 that the State had

Frank Zuccarello, who claimed Mr. Rivera made statements

acknowledging that “he was riding around looking for a young

girl” when he spotted Staci (R. 1422).

van, the State did in fact “agree to the DNA testing, we did

acknowledge its relevancy.” (3PC-R., “Supplemental Transcript,”

109). However after the results came back totally in Mr.

Rivera’s favor, the State argued the results did not warrant

relief, nor even evidentiary development. According to the

State, the DNA testing that it agreed to was merely a waste of

time and money.

where is Mark Peters?” (R. 1841). The State did not call Peters

as a witness or introduce any statements from him regarding the

blue van.

In Mr. Rivera’s first Rule 3.850 proceedings, his

collateral counsel had located Mr. Peters and presented his

testimony. Mr. Peters indicated that on the evening of January

30, 1986, Rivera picked him up at work between 5 and 6 PM.

Peters then drove Mr. Rivera home and reached his own home by 7

PM. Rivera v. State, 717 So. 2d 477, 482 (Fla. 1998). Thus, by

6 PM, Peters was in possession of his van and remained so

thereafter. After considering this testimony on appeal from the

denial of collateral relief, this Court found that Mr. Rivera

had not shown sufficient prejudice to warrant a new trial.

However, in conjunction with the DNA results, the significance

of Peters’ testimony is enhanced.

4

withheld a written plea agreement that the State had with Frank

undisclosed written plea offer with Zuccarello:

issued subpoena (R. 1402). He testified that he first told law

enforcement that Mr. Rivera had made a statement simply because

he thought what Mr. Rivera “did was a sick act” (R. 1406). On

cross, Zuccarello testified the State had “not made any deals

with you regarding [his] testimony” (R. 1410).

5

Department of Law Enforcement (lead agant: Steve

Pyers, and their investigators; and other law

enforcement offices.

The defendant will, in his cooperation, be giving

statements, which will be tested by polygraph as to

and the defendant will testify honestly.

This plea offer not only constituted undisclosed

impeachment evidence within the meaning of Brady, it also

demonstrated that the State at the time of trial did not correct

Zuccarello’s false testimony denying the existence of an

agreement obligating him “to testify at all proceedings in which

he is subpoenaed” and that the State presented false testimony

and presented false argument during Mr. Rivera’ prior collateral

proceedings.

At a post-conviction evidentiary hearing in 1995 on

Mr. Rivera’s claim that the State had withheld Brady evidence,

the State called Mr. Rivera’s trial prosecutor, Kelly Hancock,

to testify. During the direct examination of Mr. Hancock by

prosecuted by “ASA Lazarus” and detective Argentine was the

deputy that Zuccarello testified he contacted regarding Mr.

Rivera (R. 1406).

6

Assistant State Attorney Susan Bailey, the following testimony

was presented:

Q. Okay. Mr. Hancock, I would like to ask you

about the testimony of Frank Zuccarello on the witness

stand. If you need to refresh your recollection, I’ll

be more than happy - -

A. Okay.

Q. But do you recall asking Frank Zuccarello in

your direct examination if the state had made any

promises to him whatsoever regarding his testimony on

behalf of the state against Michael Rivera?

A. Absolutely, I asked him that question.

Q. And do you recall what his response was?

A. He said that we had offered him nothing to

testify.

Q. Okay. In fact, did you offer Mr. Zuccarello

any promises or anything in return for his testimony?

A. Offered him nothing.

(PC-R. 686). During cross examination, Mr. Hancock testified:

Q. You never made him any promises?

A. I never made him any promises. In fact, he

was - - my recollection, he was more than willing to

come and testify against Mr. Rivera.

* * *

Q. Are you aware of anyone else on the

prosecutor’s team or the police or involved with the

state in Mr. Rivera’s case promising these individuals

anything?

A. No, and I think I asked everyone that

testified in court if they were promised anything when

they - when they testified, if we had promised them

7

anything, and my recollection is everyone said no,

that the state had not promised them anything.

I cannot tell you with the detectives because I

wasn’t there. But my understanding from talking to

the detectives was that they were not promised

anything either.

Q. And no one on the prosecutor’s team promised

them anything?

No. I was on the prosecution’s team, I

mean, I was the one that tried the case, I don’t

recall that there was another prosecutor there to

assist me. So, the answer’s no, I didn’t promise them

anything.

(PC-R. 686, 694-95). In the State’s closing memorandum, the

State sought to have the Brady/Giglio claim denied upon the

basis of Hancock’s testimony; “Hancock testified that Zuccarello

did not receive any deal for his testimony.” State’s Memorandum

dated 6/1/95 at 11. And on the basis of Hancock’s testimony and

the representations made by the State that there was no deal for

However, pursuant to an undisclosed plea agreement,

Zuccarello in return for a reduction in his criminal liability

or prosecutors conceal significant exculpatory or impeaching

material in the State’s possession, it is ordinarily incumbent

on the State to set the record straight.” Banks v. Dretke, 124

S. Ct. 1256, 1263 (2004). Thus, a rule “declaring ‘prosecutor

may hide, defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.” Id.

at 1275.

8

Despite the new DNA evidence refuting the only

physical evidence offered by the State to link Staci Jazvac to

the blue van, and despite the new evidence showing that the

State not only failed to disclose favorable evidence to the

defense, but also showing that the State presented uncorrected

false testimony at Mr. Rivera’s trial and at his prior

collateral proceedings, the circuit court summarily denied Mr.

Rivera’s successive motion to vacate his conviction and sentence

of death. In refusing to conduct an evidentiary hearing in

light of the significant new evidence, the circuit court erred.

On August 6, 1986, Mr. Rivera was charged by

indictment in the Seventeenth Judicial Circuit Court with first

degree murder (R. 2164). Mr. Rivera was found guilty on April

16, 1987, and on April 17, 1987, the jury recommended a death

motion as warranting post-conviction relief. This new evidence

included the involvement of Detectives Scheff and Ambile in the

case of Frank Lee Smith wherein they claimed that he made

incriminating admissions to them, and statements made by the

trial judge in a newspaper article acknowledging his difficulty

in overcoming his prejudice against Mr. Rivera during the trial.

This evidence also warranted evidentiary development as

explained herein and must be evaluated cumulatively with the

particularly startling new evidence discussed in this

introduction.

9

sentence (R. 2296, 2307). On May 1, 1987, the trial court

imposed a death sentence (R. 2308-13). On direct appeal, this

Court affirmed Mr. Rivera's conviction and sentence of death,

while overturning the finding of the cold, calculated and

premeditated aggravating circumstance. Rivera v. State, 561 So.

2d 536 (Fla. 1990).

On October 31, 1991, Mr. Rivera filed a Rule 3.850

motion, along with a motion to disqualify the trial court judge

(PC-R. 739-49). Mr. Rivera subsequently filed two additional

motions to disqualify the judge (PC-R. 1024-40, 1604-18). The

disqualification motions were all denied (PC-R. 783, 1143).

The circuit court ordered a limited evidentiary

hearing, summarily denying most of the claims for relief (1PCR.

1205-06). After the evidentiary hearing in 1995, the court

denied all relief (1PC-R. 1717-21). On appeal, this Court

reversed the summary denial of the penalty phase ineffective

assistance of counsel claim, but affirmed the denial of relief

on all other claims. Rivera v. State, 717 So. 2d 477 (Fla.

1998).

On remand, the circuit court held an evidentiary

hearing on April 26-28, 2001. Following the hearing, the

circuit court denied relief, and Mr. Rivera again appealed the

denial. On September 11, 2003, this Court affirmed the denial

10

of Mr. Rivera’s penalty phase ineffective assistance of counsel

claim. Rivera v. State, 859 So. 2d 495 (Fla. 2003).

Meanwhile, on September 29, 1999, Mr. Rivera had filed

a second Rule 3.850 motion in circuit court based upon

previously undisclosed information. He filed an amendment to

the Rule 3.850 motion on September 27, 2001, in light of the

discovery of additional information that the State had

previously failed to disclose. When denying relief on the

penalty phase ineffective assistance claim, the circuit court

failed to rule on the second Rule 3.850 or its amendment. On

July 22, 2002, while Mr. Rivera’s appeal of the denial of his

penalty phase ineffective assistance of counsel claim was

pending, this Court relinquished jurisdiction to the circuit

court so that it could consider Mr. Rivera’s second Rule 3.850

motion and its amendment.

During the ensuing proceedings, additional public

records were disclosed, and DNA testing of evidence was ordered

and conducted. The circuit court granted Mr. Rivera leave to

file one new amendment of his Rule 3.850 motion containing all

of the new information disclosed and/or discovered in the course

of the proceedings following this Court’s remand. The amended

motion was filed on January 20, 2004, and it included the

results of the DNA testing (3PC-R., “Supplemental Record,” 1-

11

58). The State filed a response to the motion on June 3, 2004

(3PC-R., “Supplemental Record,” 117-40). The circuit court held

a Huff hearing on July 27, 2004 (3PC-R., “Supplemental Record

Transcript,” 87-125). On May 10, 2005, the circuit court issued

an order denying an evidentiary hearing and denying relief (3PCR.,

“Supplemental Record,” 171-80). Mr. Rivera moved for

rehearing (3PC-R., “Supplemental Record,” 181-90), which the

circuit court denied on August 30, 2005 (3PC-R., “Supplemental

Record Vol 2,” 224). Mr. Rivera timely filed a notice of appeal

(3PC-R., “Supplemental Record,” 198-99). This appeal follows.

At Mr. Rivera’s trial, the State presented evidence

that a hair found in the van in which the State contended the

crime occurred was consistent with the victim’s hair (R. 1293,

1305). The State told the jury about this hair in opening

statement: “They found a hair in Mark Peter's van, a long hair,

I think it was like six or eight inches, and he compared that

with the known hair of Staci Jazvac and that they are similar”

(R. 1305). The State also relied upon the testimony about the

hair in its closing argument (R. 1793). DNA testing conducted

in 2003 has now conclusively established that this hair did not

12

come from the victim (3PC-R., “Supplemental Record Transcript,”

39-41, 67).

In investigating the case, sheriff’s deputies

collected dark hairs found on the victim’s white knit top and

left shoe. In an affidavit dated February 24, 1986, Detective

Amabile discussed these hairs to support issuance of a search

warrant to obtain hair from Mr. Rivera. DNA testing conducted

in 2003 on eight of these hairs has established that Mr. Rivera

is definitely not the source of seven of these hairs, while the

analysis of the eighth hair was inconclusive (3PC-R.,

“Supplemental Record Vol 1, Etc.,” 42-44).

At trial, the State called jailhouse informant Frank

Zuccarello, who testified that Mr. Rivera confessed to the

murder of the victim, Staci Jazvac, and to the prior assault of

another girl, Jennifer Goetz (R. 1402-06). Zuccarello testified

that he had recently pled guilty to twenty-three felonies in

Broward and Dade Counties, receiving a seven-year sentence in

Broward and a five-year sentence in Dade (R. 1409, 1410, 1419).

Zuccarello categorically denied that his guilty pleas involved

no promises, no deals (R. 1406, 1410, 1420). Zuccarello did

admit that he had filed a motion to mitigate his sentence on his

current conviction, but testified that his testimony in Mr.

13

Rivera’s case would have no bearing on whether or not his

sentence would be reduced (R. 1419).

In 1995, Mr. Rivera amended his first Rule 3.850

motion to include a Claim XXI, which pled:

6. At trial, one of the State’s key witnesses

was Frank Zuccarello, a professional informant. Mr.

Zuccarello testified many times previously in exchange

for lenient or favorable treatment.

7. Despite Mr. Zuccarello’s history of making

deals with the State, he testified that the State had

made no promises to him and there was no deal (R.

1407, 1410).

8. However, the State had written several

letters in an effort to secure lenient treatment for

Mr. Zuccarello. (See Appendix B). Further, the State

made no attempt to correct Mr. Zuccarello’s apparently

misleading testimony.

(2PC-R. 1553). At a hearing on that motion, Kelly Hancock, the

trial prosecutor, testified that neither he nor any members of

the prosecution team had made Zuccarello any promises or offered

him anything in exchange for his testimony in Mr. Rivera’s case

(1PC-R. 686, 694-95). The State’s closing memorandum urged that

Mr. Rivera’s claim be denied based upon Hancock’s testimony:

“Hancock testified that Zuccarello did not receive any deal for

his testimony” (State’s Memorandum dated 6/1/95 at 11).

In the most recent Rule 3.850 proceedings, Mr.

Rivera’s counsel learned that Zuccarello received a deal from

the State, a deal that the State did not disclose at trial or

during the initial post-conviction proceedings. When Mr.

14

Zuccarello pled to the numerous pending charges against him on

June 12, 1986, it was pursuant to an undisclosed plea offer from

the Broward County State Attorney’s Office. The “Plea Offer:

Frank Zuccarello” provided:

I. The Defendant will enter an [sic] plea to the

following charges:

Case 85-4911CF, Aggravated Assault, violation

of Community Control

Case 86-3288CF, Kidnapping while Armed (Life

Felony), one count; Burglary while

Armed (First Degree PBL Felony),

one count; Armed Robbery (First

Degree BPL Felony), three Counts.

Case 86-3602CF, Forgery (Third Degree Felony),

two

counts; the two Misdemeanor Theft

charges will be dropped.

Case 86-3841CF, Possession of Cocaine (Third

Degree Felony), one count.

The pleas will be with a CAP, or maximum period of

incarceration of Fifteen (15) Years in prison. The

State does reserve the right to request a period of

PROBATION to run consecutive to the incarceration;

there will be a CAP, or maximum period of probation

requested, of TEN (10) years.

II. The Broward County cases, as outlined above, will

run CONCURRENT with the charge(s) the defendant will

be pleading to in Dade County.

Department of Law Enforcement (lead agant: Steve

Pyers, and their investigators; and other law

enforcement offices.

The defendant will, in his cooperation, be giving

statements, which will be tested by polygraph as to

15

and the defendant will testify honestly.

any person resulted will be examined on a case-by-case

basis, and a filing decision made accordingly. Any

participation in any HOMICIDE case will be handled

separate and apart from this agreement, by Assistant

State Attorneys in the Homicide division.

V. Frank Zuccarello will forfeit and surrender all

proceeds from his criminal activity to Florida

Department of Law Enforcement. While the exact amount

is undetermined at this time, it is believed that such

sum will be in excess of Two Hundred and Fifty

Thousand Dollars ($250,000). The dollar amount will

be submitted to the State by the defendant, and a

polygraph will be run to determine the truthfullness

of the amount. This forfeiture will be made prior to

any sentence imposed by the Court. Victim

restitution, in those situations where vicitms are

identified, will receive first priority.

Deputy Argentine regarding Michael Rivera in April of 1986,

nearly two months before the plea. Further, at the time of the

plea in June of 1986, Assistant State Attorney Joel Lazarus was

the prosecutor assigned to prosecute Michael Rivera. Mr.

Lazarus was later called as a State witnesses at the penalty

phase of Mr. Rivera’s capital trial (R. 1922). Mr. Zuccarello’s

attorney at the time of the plea in June of 1986 was Bruce

Raticoff. Mr. Raticoff was also called as a State witness at

16

Mr. Rivera’s instant Rule 3.850 motion pled that this

plea agreement was not disclosed at the time of trial or in the

prior collateral proceedings in Mr. Rivera’s case. Counsel

discovered the undisclosed plea agreement through his work on an

unrelated case in Miami-Dade County. Counsel was hired to work

on behalf of a capital defendant who was convicted and sentenced

to death in Miami. In mid-2002, counsel participated in an

evidentiary hearing in that case. In preparation for the

examination of the trial prosecutor, counsel had a discussion

with a Miami criminal defense attorney and learned that she had

collected a file regarding the same Miami prosecutor in

connection with a capital case that she had handled. She gave

the file to Mr. Rivera’s counsel to use to prepare for his

examination of the prosecutor at the mid-2002 evidentiary

hearing. When reviewing the materials, Mr. Rivera’s counsel

noticed that the file contained many documents concerning Frank

Zuccarello’s testimony at a Miami murder trial. Since those

materials did not relate to the case for which counsel was

preparing, he set those documents aside to be reviewed at

another time. While preparing for Mr. Rivera’s oral argument in

this Court in April of 2003, counsel went through those

Mr. Rivera’s capital trial; he testified regarding his

successful prosecution of Michael Rivera in 1980.

17

materials concerning Mr. Zuccarello and his testimony in the

Miami murder trial. In those materials, counsel discovered

among other items a copy of the “Plea Offer: Frank Zuccarello.”

Mr. Rivera’s counsel had never seen this “Plea Offer” before.

Nor has his subsequent review found any evidence of its previous

disclosure.

Further examination of the materials obtained from the

Miami criminal defense attorney revealed a number of “Prisoner

Receipts” included one dated April 17, 1986, showing that “Dep.

Nick Argentine” received custody of “Frank Zuccarello” “at 1010

hrs” and returned him to the jail “at 1530 hrs” (3PC-R.,

Phil Amabile” received “Frank Zuccarello” on July 17, 1986 at

“Prisoner Receipts” indicated that “G. Nelson with Metro Dade”

along with “agents from BSO,” including “Chris Presley,”

County Sheriff’s Office that the incarceration records for Frank

Zuccarello were destroyed pursuant to a destruction schedule in

the early 90's.

the Sheriff’s Office regarding Michael Rivera (R. 1406).

18

received custody of “Frank Zuccarello” on April 1, 1986, at

“1425" and returned him at “2210" (Id. at 65). A fourth receipt

showed that Detective Potts with the Fort Lauderdale Police

Department received custody of Frank Zuccarello on April 4, 1986

at “1200" and returned him at “2155" (Id. at 66).

Mr. Rivera’s counsel also discovered in the materials

received from the Miami criminal defense attorney a document

entitled “Synopsis of conversation with FRANK ZUCCARELLO on

The body of this “Synopsis” included:

that was recently heard by this Court, that prosecutor’s use the

word “Synopsis” to describe sworn statements taken from a

witness that appears before the prosecutor pursuant to a state

attorney subpoena. The trial prosecutors in that case testified

that they believed statements taken pursuant to a state attorney

subpoena were absolutely privileged, and thus were not disclosed

as a matter of policy to defense counsel. See Smith v. State,

931 So. 2d 790, 799 (Fla. 2006).

19

On Friday, April 4, 1986, one FRANK ZUCCARELLO

Gross, and Sgt. J. Wander, Det. W.R. Baker, and Det.

J. Mcdermott about an organized group that has

committed a large number of home invasion robberies

(HIR hereinafter).

The first portion of the conversation was held in

the robbery office and the second portion of the

conversation was held on locations as the CI pointed

out various locations involved in the activity. Parts

of the conversation while on location were recorded

without the knowledge of the CI. Specifically,

approximately the first forty-five minutes of the

conversation and the forty-five minutes beginning at

about 7:20 PM are recorded.

The CI is currently incarcerated in the Broward

County jail on charges stemming from a HIR. He has no

arrangement regarding those charges at this time.

The CI states that in about September of 1985 he

became involved in committing HIR with the herein

detailed group of individuals. He had personal

knowledge of the crimes described either as a

participant or from conversations with group members.

a Dade County list.

The CI is also speaking to BSO Det. Chris Presley

regarding his Broward County activities but claims

that he is only giving general information and not

specifics. Det. George Nelson of this Unit has been

in contact with Det. Presley regarding this group.

(3PC-R., “Supplemental Record,” 69 (emphasis added). This

“Synopsis” also detailed 28 “Home Invasion robberies” that “the

CI” had discussed in Dade and Broward Counties. Under the

heading “Possible Homicide Related Information,” the synopsis

20

listed four incidents described by Zuccarello, and under “Misc.

Criminal Activity,” the synopsis listed six crimes described by

Zuccarello (3PC-R., “Supplemental Record, 72-73). According to

this “Synopsis,” Mr. Zuccarello was working as a confidential

informant for Dade and Broward law enforcement by April 4, 1986,

before he met Mr. Rivera and before he reported any alleged

Another document, entitled “April 18, 1986, Interview

with Frank Zuccarello” and written by “Det. Joseph Gross” of the

Metro Dade Police Department, was also found in the materials

received from the Miami criminal defense attorney (3PC-R.,

“Supplemental Record,” 76-79). This report contained a

paragraph stating:

CI [Zuccarello] states that he has given a statement and passed

a polygraph on an unsolved BSO homicide. The case occurred

years ago. The victim was found in a car on Hallendale Beach

Blvd between Sweeney’s Pub and the Casey’s Nickelodeon. Tommy

Lamberti/Joslin and his father were responsible for it. The

victim had caused some problems to them by making mistakes in a

credit card scam they were all involved in together. The

polygraph also contained a question about the Cohen homicide.

arrest in February of 1986.

21

(Id. at 76).

Another recently discovered document is a

confidential memo dated June 24, 1986, from Robert Rios to Sgt.

Steve Vinson of the Miami Police Department (3PC-R.,

“Supplemental Record,” 80-83). This memo reports that on June

21, 1986, a polygraph examination was administered to Frank

Zuccarello regarding his version of a Miami homicide (Id. at

80). In the course of the examination, Rios found repeated

attempts at deception (Id. at 81, 83).

Another recently discovered document is a portion of a

Miami Police Department Report indicating that on June 7, 1986,

Frank Zuccarello was interviewed and polygraphed about the Miami

homicide (3PC-R., “Supplemental Record,” 84-86). The polygraph

was conducted by Detective Ilhardt who concluded that Zuccarello

“showed deception in all areas regarding the information he gave

us regarding the Cohen homicide” (Id. at 85). The police

advised Bruce Raticoff, Zuccarello’s attorney who was present

when the interview and polygraph examination occurred, that

Zuccarello had shown deception. The police asked Mr. Raticoff

for an opportunity to speak to Mr. Zuccarello to try to obtain

all the information that Zuccarello knew about the Cohen

homicide. “Mr. Raticoff said he would also talk to his client

22

and attempt to iron out any inconsistencies that might arise”

(Id. at 86).

Another recently discovered document is a July 28,

1987, memorandum from Cpl. Iglesias of the Dade County Jail

regarding whether Zuccarello should receive gain time (3PC-R.,

“Supplemental Record,” 87). Attached to the memo were four

incident reports concerning Zuccarello’s conduct in jail Id. at

88-101). Cpl. Iglesias stated:

To put it simply Zuccarello is completely immature, a

person who throws temper tantrums when he doesn’t get

his way. He is one of the most disrespectful inmates

I have ever had contact with, to both officers and

other inmates. He is always sarcastic, constantly

cusses at officers and is always threatening to call

the state attorney handling his case whenever he

doesn’t get his way. Unfortunately he seems to be

right for on many occasions the state attorney calls

up asking that nothing happen to Zuccarello, the man

seems to be above the inside as well as outside the

jail. Armed with this knowledge Zuccarello becomes so

obnoxious that on several occasions Zuccarello has had

to be placed in isolation to protect him from the

other special inmates.

It is my sincere opinion that Zuccarello does not

deserve one single minute of gain time. The man has

no regard nor remorse whatsoever for his actions. He

has no respect of any kind for the people around him.

(Id. at 87).

The incident reports attached to this memo described

incidents which occurred before Mr. Rivera’s 1987 trial. One

incident occurred in February of 1987 when Zuccarello announced

23

he was on a hunger strike until the jail moved him from “a

safety cell by himself” back to a cell nearby housing a number

of individuals. Zuccarello “was moved from there per Sgt. Smith

in an effort to regain better control of the East Wing safety

cell inmates which Zuccarello continually incites” (3PC-R.,

“Supplemental Record,” 89, 91).

Also attached to the July, 1987, memo was a six-page

incident report from October of 1986 (3PC-R., “Supplemental

Record,” 93-98). This incident arose over a visitor’s effort to

leave Zuccarello a radio. When informed that no approval for

this could be found:

Zuccarello exploded into what best can be described as

a temper-tantrum. He began cussing out loud at all

the officers around him, calling everybody “assholes,”

“motherfuckers,” and numerous other cusswords, saying

he was tired of being “fucked with,” that he would see

to it that this would be “taken care of.” This was in

the presence of this reporter [Iglesias], Off’s

Rosales, Pollard and O’Neal, and other inmates.

(Id. at 94).

As of October 1, 1998, other new evidence was

discovered by counsel for Mr. Rivera regarding Frank Zuccarello

while driving around looking for a young girl (R. 1422).

According to Zuccarello, he had discussed with Mr. Rivera the

fact that they had shared the same investigator, Detective Tom

Eastwood (R. at 1402); that Mr. Rivera told Zuccarello he had

choked Jazvac to death (R. at 1404); that Mr. Rivera told

24

article printed in the Miami Herald on Thursday, October 1,

1998, and subsequent investigation stemming from the discovery

of that article, it was learned that not only was Frank

Zuccarello used as a snitch in numerous cases in Dade and

Broward County, but that his testimony in at least two cases was

untruthful. (3PC-R., “Supplemental Record,” 30-31). (See Amy

Driscoll, 12-year-old murder case may go back to court, Miami

Herald, Oct. 1, 1998, §B at 4; Art Harris, The Imperfect Murder,

The New Times (Miami), Dec. 17-23, 1998 at 28; Art Harris,

Ending may still be rewritten in 1986 Cohen murder case, Miami

Herald, May 16, 1999, §L at 1.)

One case in which Frank Zuccarello was untruthful was

the 1986 murder of Stanley Cohen in Dade County. According to

the Miami Herald, Channel 10 news reporter Gail Bright, who was

covering the Cohen murder in the late 1980's, came forward and

stated that Metro-Dade Police Detective Jon Spears told her that

“the star witness in the case lied to convict Cohen’s wife,

Joyce, of hiring three hit men to kill her millionaire husband.”

Amy Driscoll, 12-year-old murder case may go back to court,

Miami Herald, Oct. 1, 1998, §B at 4. The star witness for the

Zuccarello he planned to fondle and molest Jazvac (R. at 1404,

1405); that Mr. Rivera told Zuccarello that he liked little

girls (R. at 1404); and, that Mr. Rivera placed the body in a

rock pit two miles from his home in Coral Springs (R. at 1405).

25

State in the Cohen case was Frank Zuccarello (3PC-R.,

“Supplemental Record,” 31).

Stanley Cohen was murdered on March 7, 1986.

Zuccarello was arrested by Fort Lauderdale Police just four days

after the Cohen murder, for an unrelated string of home invasion

cooperating with the State, giving up the names of numerous

individuals responsible for at least 29 home-invasion robberies

in Dade and Broward County. Two of the names given up by

Zuccarello were Anthony Caracciolo and Tommy Joslin. In

addition to this information, Zuccarello began talking about two

murders; one was the Cohen murder, and the other was the murder

of a man by the name of Charles Hodek in Broward County (3PC-R.,

“Supplemental Record,” 31-32).

While talking to police, Zuccarello identified Joyce

Cohen’s photograph and stated he had seen her during a meeting

between her and Anthony Caracciolo in Coconut Grove, Florida.

Zuccarello told police that he, Caracciolo and Joslin were hired

by Joyce Cohen to murder her husband and make it look like a

robbery. Zuccarello then informed the police that he drove his

pals to the Cohen house the night of the murder. Miami police

polygraphed Zuccarello three times about the details of the

murder, and all three times he failed. Florida Department of

26

Law Enforcement Agent Steve Emerson was brought on to the case

for the purpose of corroborating Zuccarello’s statements through

his co-defendants but was never able to do so (3PC-R.,

“Supplemental Record,” 32).

In 1998 after news Reporter Gail Bright came forward,

Zuccarello acknowledged there may be untruthfulness to his

testimony. After learning of the information provided by Gail

Bright, attorney Alan Ross, counsel for Joyce Cohen, sent

private investigator Eric Zeid to talk to Zuccarello. Zeid told

Zuccarello, “It’s about karma, doing the right thing.”

Zuccarello replied, “If I did the right thing, I'd piss off a

lot of people down there.” Art Harris, The Imperfect Murder,

The New Times (Miami), Dec. 17-23, 1998 at 28 (3PC-R.,

“Supplemental Record,” 32-33).

Zuccarello also admitted that the information he

originally gave Captain Tony Fantigrassi, Broward Sheriff’s

Office, in the Charles Hodek murder was false. In 1986, during

the same time Metro-Dade Police were questioning Zuccarello

regarding the Cohen murder, Broward police questioned Zuccarello

regarding the murder of Charles Hodek. In that murder,

Zuccarello fingered Louis Lamberti, stating that Lamberti’s son,

Tommy Joslin, told him that Lamberti instructed Joslin where to

bring Hodek to be killed. However, soon thereafter, Tommy

27

Joslin was arrested and provided information that he was present

during the killing of Hodek, and that Richie DelGaudio was

responsible for Hodek’s death. Captain Tony Fantigrassi was

able to corroborate all the facts given by Joslin. As a result,

Captain Fantigrassi confronted Zuccarello on his statement that

Lamberti was the shooter and Zuccarello admitted he lied.

Zuccarello stated he always knew DelGaudio shot Hodek, but

because he was afraid of DelGaudio, he gave up Lamberti instead.

Art Harris, Ending may still be rewritten in 1986 Cohen murder

case, Miami Herald, May 16, 1999, §L at 2 (3PC-R., “Supplemental

Record,” 33).

A Supplemental Report by Lt. R. Rios of the Broward

County Sheriff’s Office dated 02/18/86 detailed that officer’s

conversation with Mr. Rivera at 17:30 on Tuesday February 18,

1986 during which he invoked his right to counsel:

At one point during our conversation he stated

that he had an 8 pm appointment with a Mr. Peter

Giacoma (Attorney), who may represent him in an

upcoming case. As our conversation continued we spoke

of...family problems to sexual problems, suicide and

mental problems. During the time Mr. Rivera was

talking about suicide, he stated that is he died he

would return and enter his mother’s heart and explain

to her all the problems he has had and then “I’ll

explain about how the accident occurred.” At this

point he seemed to have caught himself and suddenly

became very very angry. He started yelling and

screaming “you can’t hold me here any longer, I want

my Lawyer now.” “This is the same bullshit as

before.” After a quiet period he seemed to settle

28

down. He never again mentioned anything about the

case unless he was asked a direct question by me.

(3PC-R., “Supplemental Record,” 89, 91).

This report was put into context by a recent article

delivered to Rios for an interview on February 18, 1986,

Detectives Scheff and Amabile told Rios that Mr. Rivera had

waived his Miranda rights. However, when Mr. Rivera began to

protest, Rios was convinced that Rivera had told the officers

that he wanted to speak to an attorney. During an interview

with the Herald, Robert Rios stated, “I took it to mean that he

was read his rights before, and he didn’t waive.” Daniel de

case is questioned, June 25, 2001. Rios also told the Herald

reporter that although Rivera had signed a statement requesting

an attorney earlier the same day, Scheff and Amabile never

informed Rios of that statement. Id. Mr. Rivera was not aware

of Robert Rios’s conclusions until June 25, 2001, the date the

article was published (3PC-R., “Supplemental Record,” 41-42).

This newly discovered evidence demonstrated that the State

failed to disclose that Mr. Rivera was deprived of his Sixth

Amendment right to counsel and right to remain silent when a

confidential informant for the Broward Sheriff’s Office, Frank

29

Zuccarello, was placed in his jail cell have also recently come

to light. These facts involve allegations of misconduct by

several Broward Sheriff’s Officers, including Richard Scheff.

The reported allegations involve cases in which persons arrested

and charged with murder by the Sheriff’s Office were later

determined to be innocent (including Frank Lee Smith, a man who

had been condemned to die on death row, and Jerry Frank

Townsend) or had their charges dismissed (3PC-R., “Supplemental

Record,” 42).

On or about March 19, 2001, Governor Bush ordered an

investigation into whether Scheff lied under oath to keep an

innocent man on death row. Scheff’s testimony was pivotal in

discrediting a recanting eye-witness’s testimony in the Frank

Lee Smith case (Broward County Case No. 85-004654CF10A). Based

on Scheff’s allegedly false testimony, the court denied Smith

post-conviction relief. After Frank Lee Smith died of cancer

after sitting 14 years on death row, a DNA test proved his

innocence (3PC-R., “Supplemental Record,” 42-43).

On July 3, 2001, the agency investigating Scheff

released its investigative report. The report makes clear that

the focus of the investigation was to determine whether there

was sufficient evidence that Captain Scheff knowingly gave false

testimony to warrant criminal prosecution. While the state

30

attorney determined that there was insufficient evidence to

warrant criminal prosecution, he recognized that Scheff’s and

Amabile’s testimony may have been based on incorrect or careless

assumptions. The state attorney also recognized their testimony

may have been based on sheer negligence (3PC-R., “Supplemental

Record,” 43). This constituted newly discovered impeachment

evidence of Scheff.

In the Jerry Frank Townsend case, Broward Sheriff’s

detectives obtained confessions from Townsend for five different

murders in Broward County. In April 2001, the BSO crime lab

completed DNA testing in all five cases and concluded that

Townsend was innocent. He has since been released (3PC-R.,

“Supplemental Record,” 43).

Captain Scheff and Detective Amabile have reportedly

been the subject of internal affairs investigations, including

investigations for employing improper interrogation techniques.

See Keen v. State, 775 So. 2d 263 (Fla. 2000).

Mr. Rivera was not aware of any of this information at

trial or during previous postconviction proceedings. All of the

new information, that was known to the State and/or its agents,

but that was undisclosed to either Mr. Rivera or his counsel,

casts doubt on the credibility of the Broward Sheriff’s Office

31

and specifically on those officers investigating Mr. Rivera’s

case.

Staci Jazvac, the victim, was last seen on January 30,

1986, between 6:30 and 7:00 p.m. (R. 795). When her body was

discovered on February 14, 1986, she was wearing jeans, a white

nylon jacket and a white top (R. 897-98, 913).

Sheriff’s detectives Scheff and Amabile were assigned

to the victim’s disappearance on February 4, 1986 (R. 1002).

The detectives spoke to Starr Peck who had been receiving phone

calls from someone named Tony (R. 1007-08). After speaking to

Peck, the detectives went to find Mr. Rivera (R. 1010). They

located Mr. Rivera on February 13 and told him they wanted to

take him to their office to talk to him about something. Mr.

Rivera responded, "If I talk to you guys, I'll spend the next 20

years in jail" (R. 1012-13).

Scheff testified that when they got to the sheriff’s

office, he read Mr. Rivera his Miranda rights (R. 1013). Mr.

Rivera told the detectives he had sexual fantasies about young

girls (R. 1014, 1015). He admitted he had made the phone calls

to Starr Peck, but denied that he had abducted or murdered Staci

Jazvac (R. 1015). The detectives decided to call in Detective

Eastwood, who spent four hours talking to Mr. Rivera (R. 1016).

32

After talking to Eastwood, Mr. Rivera again talked to

Scheff and Amabile. He said he had been fantasizing recently

about raping young girls and had gone prowling various

neighborhoods in Broward County looking for a vulnerable victim

(R. 1018). He did this in a van that he had borrowed from Mark

Peters (R. 1018). He said the girls would have to be

unconscious, so he would knock them out with ether he got from

Peters (R. 1019). Mr. Rivera said whoever did this probably did

not have very much gas in a van and did not have enough money to

get more gas, so he thought the body would be found in Broward

County and that the person was afraid of running out of gas with

the body in the car (R. 1020). After dinner on February 13, Mr.

Rivera spoke with Detective Eastwood for an hour and a half or

two hours (R. 1021). Then he again spoke to Scheff, Amabile and

Detective Asher (R. 1021). Initially, Mr. Rivera had said that

he did not call Bobby Rubino's restaurant, but in the early

evening of February 13th, he admitted he did call Bobby Rubino's

regarding Staci Jazvac (R. 1032-33).

Detective Scheff also testified that he spoke to jail

inmates, Donald Mack, Frank Zuccarello and Peter Salerno

regarding the Jazvac case and did not promise them anything

regarding their sentences (R. 1035-37).

33

On cross-examination, Scheff testified that although

Mr. Rivera admitted making phone calls regarding Staci Jazvac,

the content of the phone calls was a fantasy which he found to

be sexually exciting (R. 1041). Mr. Rivera never admitted to

the detectives that he abducted or kidnapped the victim (R.

1041). Scheff testified that Donald Mack and Frank Zuccarello

contacted the detectives in March or April (R. 1054).

Starr Peck testified that she began receiving phone

calls at her home in September of 1985 (R. 1083). The caller

knew her name and said his name was Tony (R. 1084). He called

twenty-five to thirty or more times (R. 1087). On February 7,

1986, the call was totally different (Id.). In previous calls,

the caller was whining and talking baby talk, but this time his

voice was clear and he was scared (Id.). He said he had “done

something very terrible," and when Peck asked what he had done,

he said, "I'm sure you've heard about the girl Staci" (Id.).

Peck asked, "Do you mean the eleven-year-old girl?" and he said,

"Yes. I've done something very terrible. I killed her and I

didn't mean to" (Id.). He said he "had a notion to go out and

expose myself,” saw a girl getting off her bike and went up

behind her (Id.). The caller said he put ether up to the girl’s

mouth and nose and then dragged her into the van (R. 1088). He

kept saying, "I didn't mean to kill her. I really didn't mean

34

to kill her" (R. 1088). He also said the girl “had silky shorts

on” (R. 1089). He said that when he dragged the girl into the

van, she was dead, but he "put it in her and she bled and then I

put it in her anyway" (R. 1089). He said he left the body by

Lake Okeechobee (R. 1090).

Julius Minery testified that he saw Mr. Rivera at an

IHOP on the afternoon of Friday, January 31, 1986, and Mr.

Rivera was driving a blue van (R. 1125-26).

Angela Greene testified that over a two-year period,

she received over 200 obscene phone calls at the various

restaurants where she worked (R. 1243-44, 1245). On February 7,

1986, the caller said, "I had that Staci girl" (R. 1244). The

caller said he was wearing his pantyhose and he “put an ether

rag over her face" (R. 1245). He also said “She’s gone” and

"They'll never find her" (R. 1245).

Dawn Soter testified that Mr. Rivera lived on the

other side of her duplex and drove a light blue van (R. 1255).

Soter saw Mr. Rivera with that van during the last part of

January of 1986, and saw that van parked in front of Mr.

Rivera’s house on the morning of January 31, 1986 (R. 1256).

Deputy Tom Carney testified that on February 14,

Detective Amabile asked him to sit in on an interview with

Michael Rivera (R. 1262). Mr. Rivera said that on January 30th,

35

1986, he spent the entire day and night with his brother Peter,

first out mudding in a truck and in the evening at a carnival in

Lauderdale Lakes (R. 1263). When he was shown a photograph of

Staci Jazvac, Mr. Rivera said he recognized her, having seen her

once at a Tenneco Station off of Northwest 31st Avenue in

Lauderdale Lakes (R. 1266). Detective Amabile told Mr. Rivera

that Peter Rivera’s work records indicated that Peter was at

work on January 30th, 1986, and could not have been with his

brother on that date (R. 1267). Mr. Rivera then said that he

did not recall where he was on January 30th, 1986, and that he

blacks out sometimes (R. 1267). He also said, "I don't remember

killing Staci Jazvac. I don't remember killing Staci" (R.

1267). On February 15, Amabile received a call from Mr. Rivera,

who asked to see Amabile and Carney (R. 1268). Mr. Rivera said

he had thought about it very hard and was certain he was with

his brother on January 30th, 1986 (R. 1268). On February 17,

Amabile told Mr. Rivera he had spoken with Peter, who had said

he was not with Mr. Rivera on January 30th, 1986 (R. 1268). Mr.

Rivera replied that he could not recall, that he freebased

cocaine and that he blacks out (R. 1269). Once again he said he

did not recall and he did not remember killing Staci Jazvac (R.

1269).

36

Howard Seiden of the Broward Sheriff’s Department

crime laboratory testified that he compared a hair found in Mark

Peters’ van with a known head hair from Staci Jazvac. Seiden

concluded, “It's my scientific opinion that the hair from the

bed of the van could be concluded as being a source from the

victim, item number five, which was the head hair sample of the

victim” (R. 1305).

Deputy Thomas Eastwood testified that he interviewed

Mr. Rivera on February 13 (R. 1326). Mr. Rivera admitted he did

make some obscene phone calls about the disappearance of Staci

Jazvac and told people he had abducted and killed her (R. 1327).

Mr. Rivera also said that on January 30, he was at his home all

evening by himself (R. 1327). The deputy and Mr. Rivera also

discussed Mr. Rivera’s enjoyment of exposing himself to young

girls (R. 1328). Mr. Rivera said he got to the places where he

exposed himself in a van borrowed from Mark Peters (R. 1329).

When Eastwood asked if Mr. Rivera had thought about how he could

pick up girls or force them to have sex with him, Mr. Rivera

said, "Yes." He said, "Every time I get in a vehicle, I do

something terrible" (R. 1329). Mr. Rivera added, "I have

thought about it. I could pick up girls and even how to force

them into having sex with me, but I haven't done it" (R. 1329).

Mr. Rivera said he had thought about this "[o]ften" (R. 1329).

37

The last time he thought about this was "[t]wo weeks ago when I

had the van" (R. 1330). When Eastwood asked Mr. Rivera if there

was anything significant about any of the girls he exposed

himself to, Mr. Rivera said, "One of them was pushing a bike"

(R. 1330). At this point, Eastwood stopped the interview and

advised Mr. Rivera of his constitutional rights (R. 1331). Mr.

Rivera then said, "Every time I get into a vehicle, I do

something terrible" (R. 1332). When pressed for details, Mr.

Rivera said he did one time actually grab a young girl and pull

her into some bushes (R. 1332). Mr. Rivera broke down, started

to cry and said, "Tom, I can't stop myself. I can't control

myself. Either kill me or put me in jail because I'm going to

keep on doing what I'm going to do if you don't stop me" (R.

1333). On cross-examination, Eastwood testified that Mr. Rivera

denied abducting and killing Staci Jazvac and denied knowing

anything about the offense (R. 1341-43). Eastwood also

clarified that Mr. Rivera’s statements about dragging a young

girl into the bushes were not about Staci Jazvac and involved an

incident which had occurred in Coral Springs (R. 1346-48).

Detective Gerald Asher of the Coral Springs Police

Department described an attack which occurred in July of 1985 on

a girl named Jennifer Goetz (R. 1370-71). On February 13, 1986,

Asher interviewed Mr. Rivera about this attack, and Mr. Rivera

38

admitted he had dragged Goetz into some bushes, but was scared

away because someone was nearby (R. 1379).

Frank Zuccarello testified that he met Mr. Rivera in

jail in April of 1986 (R. 1402). Both Zuccarello’s and Mr.

Rivera’s cases had the same investigator, Tom Eastwood (R.

1403). According to Zuccarello, Mr. Rivera said that when he

was arrested, Eastwood kept pressing him about Staci Jazvac, so

Mr. Rivera confessed to another case involving Jennifer Goetz

hoping Eastwood would leave him alone about Jazvac (R. 1403).

Zuccarello testified that Mr. Rivera said he made a big mistake

in calling Starr Peck and telling her he had killed Staci Jazvac

(R. 1403).

According to Zuccarrello, Mr. Rivera confessed to

killing Staci Jazvac, saying he choked her after he had brought

her to the field and things got out of hand (R. 1404). Mr.

Rivera said he was going to fondle her and talked about his

problem with young girls (R. 1404). Mr. Rivera said he was

driving in the neighborhood when he spotted Staci Jazvac and was

going to molest and fondle her (R. 1405). Zuccarello testified

that Mr. Rivera said after he choked Staci Jazvac, he dumped her

in a rock pit two miles from his house (R. 1405).

Zuccarello testified he notified Nick Argentine of the

Broward Sheriff’s Office about Mr. Rivera’s statements (R.

39

1406). Zuccarello told Argentine about Mr. Rivera’s statements

because he thought it was a sick act (R. 1406). No one had

promised Zuccarello anything (R. 1406). Zuccarello also talked

to deputy Amabile, who made him no promises about testifying (R.

1407).

Zuccarello testified that he had been sentenced to a

seven-year prison term (R. 1407). He had filed a motion to

mitigate his sentence, looking to reduce it by two years (R.

1407). He had received no promises regarding that sentence in

exchange for his cooperation in Mr. Rivera’s case (R. 1407).

On cross-examination, Zuccarello clarified that he had

been convicted of twenty-three felonies in two separate cases,

one in Broward County and one in Dade County (R. 1409).

Zuccarello testified that he talked to Amabile on July 16, 1986,

at which time he had twenty-three pending felonies (R. 1415).

The charges included armed robbery, burglary, armed burglary,

aggravated assault, resisting arrest and home invasions (R.

1422-23). Since then he had pled guilty and been sentenced to

seven years in prison in the Broward case and five years in the

Dade case (R. 1410, 1419). He was hoping to get his Broward

sentence reduced by two years so it would be the same as the

Dade sentence (R. 1410). His testimony in Mr. Rivera’s case had

no bearing on what would happen with the motion to mitigate (R.

40

1419). On redirect, Zuccarello reiterated that he had received

no promises regarding the mitigation matter but hoped someone

would speak on his behalf (R. 1421).

Jennifer Goetz testified that in July of 1985, when

she was eleven years old, she was leaving her apartment to go to

day camp when a man grabbed her from behind, put one arm around

her neck and the other around her waist, and dragged her into

some bushes (R. 1452-54). Ms. Goetz passed out briefly and when

she awoke, the man ran away and another man helped her (R. 1454-

55). She only got a glance at her attacker and could not

identify him (R. 1459, 1461). The medical examiner testified

that a photograph of Ms. Goetz’s face showed petechial

hemorrhages in her eye, a common finding in people asphyxiated

by strangling (R. 1467).

William Moyer testified that he met Mr. Rivera around

February of 1986 in jail (R. 1475). One day, Mr. Rivera said to

him, “I didn’t do it, but Tony did it” (R. 1476). Moyer later

heard Mr. Rivera on the telephone identifying himself as Tony

(R. 1476).

Moyer testified that in January of 1987, he was

sentenced to thirteen years in prison for a sexual battery

involving his stepdaughter (R. 1478). He had a motion to

mitigate that sentence pending, but had received no promises and

41

had not asked for anything from the State in exchange for his

testimony in Mr. Rivera’s case (R. 1478-79). He would

appreciate someone coming forward to say he cooperated and

testified (R. 1479).

On cross-examination, Moyer testified that he had two

contacts with prosecutor Hancock, one time about three weeks

earlier and the second time that morning (R. 1480). The first

meeting was also attended by deputy Amabile (R. 1480). Moyer

had his conversation with Mr. Rivera while they were in a pod

with about fifteen prisoners (R. 1484). Zuccarello was in that

pod later on (R. 1484). Moyer did not remember Donald Mack and

did not know Peter Salerno, although he knew a Peter Cardell (R.

1484). Moyer was in jail on several charges of sexual battery,

each of which was a capital felony, and was facing life

sentences (R. 1490). He pled to one charge and received a

thirteen-year sentence on January 30, 1987 (R. 1490). Before

his sentencing, Moyer told law enforcement about Mr. Rivera’s

statement (R. 1490). He had talked to Amabile two or three

times, but only one conversation was tape recorded (R. 1490).

Moyer did not expect his testimony in Mr. Rivera’s case to be

taken into account on his motion to mitigate his sentence (R.

1492).

42

On redirect, Moyer testified that he told law

enforcement about Mr. Rivera’s statement because it kept

bothering him so much that he had to talk to someone about it

(R. 1495-96). He did not ask for anything when he told

detectives about Mr. Rivera’s statement, and they did not

promise him anything (R. 1496-97). When he met with Hancock and

Amabile, they did not tell him to say anything, but just asked

him questions (R. 1497).

Detective Amabile testified similarly to deputies

Scheff and Carney regarding Mr. Rivera’s statements during his

interviews with the deputies (R. 1512-22, 1525-29, 1532-35).

Amabile had talked to Zuccarello, Moyer, Mack and Salerno (R.

1539). He made no promises to them, and none of them asked for

anything (R. 1539).

Peter Salerno testified that he had contact with Mr.

Rivera in 1986 in jail (R. 1574). One day when Mr. Rivera,

Zuccarello, Moyer and Salerno were in the yard, Mr. Rivera told

Salerno, “I didn’t mean to kill the little Staci girl. Just

wanted to look at her and play with her. I seen her on a bike

and she excited me” (R. 1576). In the month before that,

Salerno had heard that Mr. Rivera was involved in the attempted

murder of another girl, and he asked Mr. Rivera about this (R.

1577). Mr. Rivera admitted there were some witnesses in that

43

case and then said, “but I’m not going to get convicted with the

Staci girl because she’s dead. There are no witnesses” (R.

1578).

Salerno testified that he was contacted by Hancock (R.

1578). Salerno had a pending case on which he had received a

twelve-year sentence, but something happened to the twelve years

(R. 1579). He had received no promises regarding his testimony

in Mr. Rivera’s case (R. 1579).

On cross-examination, Salerno testified that he met

Mr. Rivera in April or May of 1986 (R. 1580). Mr. Rivera just

happened to come up to him and make his statement (R. 1580).

Salerno had testified as a state or federal witness eleven times

(R. 1581). He was not in custody at the time of his testimony

in Mr. Rivera’s case and had come to the courthouse on his own

(R. 1581-82). He was still under a twelve-year sentence, but

was to appear in court on January 15, 1988 (R. 1582). He did

not know what the judge was going to do, but that proceeding had

nothing to do with Mr. Rivera’s case (R. 1582). He did not know

if the State would let the judge know about his cooperation (R.

1582). Salerno was not in the federal witness protection

program, but was on probation (R. 1583).

Gail Mastendo, a Denny’s manager, testified that she

received many obscene phone calls from the beginning of 1985

44

until June of 1985 (R. 1587). The caller said that he was

wearing pantyhose and a black body suit, breathed heavily and

masturbated (R. 1587). He said that his name was Tony and that

he liked children (R. 1589). He said he had grabbed a little

girl and hurt her badly (R. 1590).

1. The circuit court erred as a matter of law in

denying Mr. Rivera’s Rule 3.850 motion without an evidentiary

hearing. The motion pled facts regarding both the substance of

the new facts and Mr. Rivera’s diligence in ascertaining those

facts. Taken as true, those facts show that Mr. Rivera is

entitled to relief and are not conclusively refuted by the

record. However, the trial court failed to take the facts as

true, largely ignoring Mr. Rivera’s allegations in the order

summarily denying relief. This Court should order an

evidentiary hearing.

2. At trial and during prior post-conviction

proceedings, the State presented false testimony that jail

informant Zuccarello had received no promises of assistance from

the State in exchange for his testimony against Mr. Rivera.

Zuccarello testified at trial that his pleas to twenty-three

felonies in Broward and Dade Counties were unrelated to his

testimony in Mr. Rivera’s case. In fact, Mr. Rivera’s counsel

45

recently discovered a written plea agreement requiring

Zuccarello’s cooperation. Other recently discovered documents

also show the close relationship Zuccarello had with law

enforcement, as well as showing that Zuccarello knew how to use

that relationship to his benefit. The State is required to show

beyond a reasonable doubt that Zuccarello’s false testimony had

no effect on the outcome of Mr. Rivera’s trial and penalty

phase. The State cannot make that showing. The lower court

applied an incorrect legal standard and did not accept Mr.

Rivera’s allegations as true in summarily denying relief. This

Court should order an evidentiary hearing, a new trial and a new

penalty phase.

3. The State withheld material, exculpatory

information from Mr. Rivera. In addition to the plea agreement

and other evidence discussed in Argument II, the State withheld

other evidence of Zuccarello’s relationship with law enforcement

which impeached Zuccarello’s trial testimony. The State

withheld information showing that Zuccarello was a State agent

at the time he was placed in Mr. Rivera’s cell, rendering

Zuccarello’s testimony inadmissible. The State withheld

information that Mr. Rivera requested counsel during custodial

interrogation but was not provided counsel, rendering Mr.

Rivera’s statements inadmissible. Considered cumulatively with

46

all the exculpatory evidence discovered during post-conviction,

as well as with the new DNA evidence, the new evidence

undermines confidence in the outcome of Mr. Rivera’s trial and

penalty phase. In summarily denying relief, the lower court did

not accept Mr. Rivera’s allegations as true. This Court should

order an evidentiary hearing, a new trial and a new penalty

phase.

4. DNA testing of a hair found in Mark Peters’ van

and introduced at trial as consistent with the victim’s hair

conclusively revealed that the hair was not the victim’s. Other

hairs found on the victim’s body were also tested. Seven of

these hairs were definitely not Mr. Rivera’s, while the testing

of an eighth hair was inconclusive. Considered cumulatively

with other evidence, the DNA evidence establishes that the

offense did not occur in Mark Peters’ van, as the State

contended at trial, and that no physical evidence links Mr.

Rivera to the victim. The DNA evidence would probably lead to

an acquittal. This Court should order an evidentiary hearing

and a new trial.

5. New information shows that the trial judge, who

also presided over Mr. Rivera’s first Rule 3.850 proceedings,

was biased against Mr. Rivera. In 2001, the judge told a

newspaper that he “had great confidence in the prosecutor,” that

47

although he wanted a fair trial for Mr. Rivera, his personal

beliefs were not the same, and that Mr. Rivera’s phone calls to

Starr Peck convinced him of Mr. Rivera’s guilt. The fact that

the judge had to strive to set aside his personal feelings could

not be a clearer statement of bias or prejudice. This Court

should order an evidentiary hearing, a new trial and new

proceedings on Mr. Rivera’s first Rule 3.850 proceedings.

The claims presented in this appeal are constitutional

issues involving mixed questions of law and fact and are

factfindings. Stephens v. State, 748 So. 2d 1028, 1034 (Fla.

1999); State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001).

The lower court denied an evidentiary hearing, and therefore the

facts presented in this appeal must be taken as true. Peede v.

State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin v. State, 737 So.

2d 509, 516 (Fla. 1999); Lightbourne v. Dugger, 549 So. 2d 1364

(Fla. 1989).

48

This Court has long held that a post-conviction

defendant is “entitled to an evidentiary hearing unless ‘the

motion and the files and records in the case conclusively show

that the prisoner is entitled to no relief.’” Lemon v. State,

498 So. 2d 923 (Fla. 1986), quoting Fla. R. Crim. P. 3.850.

“Under rule 3.850, a postconviction defendant is entitled to an

evidentiary hearing unless the motion and record conclusively

show that the defendant is entitled to no relief.” Gaskin v.

784 So. 2d 380, 386 (Fla. 2000); Arbelaez v. State, 775 So. 2d

909, 914-15 (Fla. 2000). Factual allegations as to the merits

of a constitutional claim as well as to issues of diligence must

be accepted as true, and an evidentiary hearing is warranted if

the claims involve “disputed issues of fact.” Maharaj v. State,

684 So. 2d 726, 728 (Fla. 1996).

The same standard applied where the post-conviction

motion is successive. Lightbourne v. State, 549 So. 2d 1364,

1365 (Fla. 1989). As to a successive postconviction motion,

allegations of previous unavailability of new facts, as well as

diligence of the movant, are to be accepted as true and warrant

evidentiary development so long as not conclusively refuted by

the record. Card v. State, 652 So. 2d 344, 346 (Fla. 1995).

Successive Rule 3.850 petitioners have received evidentiary

49

hearings based on newly discovered evidence and merits

consideration. State v. Mills, 788 So. 2d 249, 250 (Fla.

2001)(the Florida Supreme Court affirmed the circuit court’s

grant of sentencing relief on a third Rule 3.850 motion premised

upon a testifying co-defendant’s inconsistent statements to an

individual while incarcerated); Lightbourne v. State, 742 So. 2d

238, 249 (Fla. 1999)(remanding for an evidentiary hearing to

evaluate the reliability and veracity of trial testimony);

Melendez v. State, 718 So. 2d 746 (Fla. 1998)(noting that lower

court held an evidentiary hearing on defendant’s allegations

that another individual had confessed to committing the crimes

with which defendant was charged and convicted); Swafford v.

State, 679 So. 2d 736, 739 (Fla. 1996)(remanding for an

evidentiary hearing to determine if evidence would probably

produce an acquittal); Roberts v. State, 678 So. 2d 1232, 1235

(Fla. 1996)(remanding for evidentiary hearing because of trial

witness recanting her testimony); Scott v. State, 657 So. 2d

1129, 1132 (Fla. 1995)(holding that lower court erred in failing

to hold an evidentiary hearing and remanding); Johnson v.

Singletary, 647 So. 2d 106, 111 (Fla. 1994)(remanding case for

limited evidentiary hearing to permit affiants to testify and

allow appellant to “demonstrate the corroborating circumstances

sufficient to establish the trustworthiness of [newly discovered

50

evidence]”); Jones v. State, 591 So. 2d 911, 916 (Fla.

1991)(remanding for an evidentiary hearing on allegations that

another individual confessed to the murder with which Jones was

charged and convicted and was seen in the area close in time to

the murder with a shotgun).

In Mr. Rivera’s case, the lower court erroneously

failed to grant an evidentiary hearing despite allegations

regarding the substance of the new evidence, the constitutional

claims based upon the new evidence, and Mr. Rivera’s diligence

in attempting to unearth the new evidence. Claim I of Mr.

Rivera’s Rule 3.850 motion pled that the State had presented

false and misleading testimony at Mr. Rivera’s trial and during

the prior post-conviction proceedings (3PC-R., “Supplemental

pled the new facts upon which the claim was based (3PC-R.,

“Supplemental Record,” 10-17), as well as facts regarding Mr.

Rivera’s diligence in learning these facts (3PC-R.,

“Supplemental Record,” 13-14, 17-18). The claim also

specifically alleged that the State affirmatively deceived Mr.

Rivera and his counsel during trial and Mr. Rivera’s initial

post-conviction proceedings about the existence of these facts

(3PC-R., “Supplemental Record,” 13-14, 17-18).

51

Without accepting Mr. Rivera’s allegations as true,

the circuit court denied this claim, stating that Mr. Rivera had

repeatedly made public records requests with which the State

complied and that therefore “the Defendant has long had access

to substantial documentary evidence of Mr. Zuccarello’s status

as witness, victim and defendant in an array of cases” (3PC-R.,

“Supplemental Record,” 173). Thus, the court concluded, “The

information the Defendant claims he did not have regarding

Zuccarello was known or could easily have been known prior to

the filing of his first postconviction motion” and denied the

claim as successive (3PC-R., “Supplemental Record,” 173).

This part of the circuit court’s analysis did not

mention--much less accept as true--Mr. Rivera’s allegations

regarding the substance of the new facts or his allegations

regarding diligence. For example, Mr. Rivera’s Rule 3.850

motion quoted a plea agreement between the State and Zuccarello

which had never before been disclosed. However, the circuit

court did not mention the substance of this agreement, the fact

that Zuccarello testified at trial that his pleas in other cases

were unrelated to his testimony at Mr. Rivera’s trial, the fact

that the State had affirmatively said no such agreement existed,

or Mr. Rivera’s allegations regarding how the agreement was

52

discovered. An evidentiary hearing on these matters is

required.

Similarly, the circuit court did not address the fact

that Mr. Rivera’s requests for jail records and logs were

repeatedly met with the response that the records had been

destroyed in the early 1990's. However, jail logs concerning

Zuccarello and his contact with law enforcement in April through

July of 1986 were discovered as alleged in the motion to vacate

through serendipity when counsel while working on another case

in 2002 in Miami-Dade County was provided files a defense

attorney had collected on a Miami prosecutor. In those files

were records concerning Zuccarello, including not only the

previously unseen plea offer, but also jail records. The

circuit court simply did not accept the factual allegations

contained in the motion to vacate as true when denying the

motion without conducting an evidentiary hearing.

Nor did the circuit court accept the fact that the

State did not disclose a “Synopsis” of a witness’ statement to a

prosecutor pursuant to a state attorney subpoena. The

“Synopsis” was also discovered by serendipity in a file obtained

from a defense attorney in connection with a total unrelated

case.

53

Moreover, the circuit court ignored the United States

Supreme Court’s recent decision in Banks v. Dretke, 124 S.Ct. at

1263, wherein the Supreme Court held: “When police or

prosecutors conceal significant exculpatory or impeaching

material in the State’s possession, it is ordinarily incumbent

on the State to set the record straight.” Thus, a rule

“declaring ‘prosecutor may hide, defendant must seek,’ is not

tenable in a system constitutionally bound to accord defendants

vacate was to argue that enough other documents were disclosed

pursuant to public records that Mr. Rivera previously presented

a claim that Zuccarello received undisclosed consideration for

his testimony (3PC-R., “Supplemental Transcript, 103-04). This

argument failed to challenge that the specific records that Mr.

Rivera relied upon in his motion had not been previously

“Synopsis.” But as to the records disclosed in 1995 and pled at

the time and heard at the 1995 evidentiary hearing, the State

specifically presented sworn testimony and made argument that

there was no agreement. At the evidentiary hearing, Kelly

Hancock, the trial prosecutor, testified that neither he nor any

members of the prosecution team had made Zuccarello any promises

or offered him anything in exchange for his testimony in Mr.

Rivera’s case (1PC-R. 686, 694-95). The State’s closing

memorandum urged that Mr. Rivera’s claim be denied based upon

Hancock’s testimony: “Hancock testified that Zuccarello did not

receive any deal for his testimony” (State’s Memorandum dated

6/1/95 at 11).

Moreover, just because some records are disclosed does not

mean that other Brady material was not withheld. In every case

in which this Court has order a new trial that counsel is aware

of, the State had disclosed many pages of material. However,

that did not insulate the State from the obligation to disclose

the specific material that this Court found warranted a new

trial. Floyd v. State, 902 So. 2d 775 (Fla. 2005); Mordenti v.

54

State to “set the record straight,” not upon the defense to

intuit that the State is holding information back or, in fact,

out and out misrepresenting facts.

Here, the State must be held to have known what was

contained in the plea offer and in the jail records and in the

“Synopsis” regarding the relationship between Zuccarello, and

the State must be held responsible for its failure to turn over

these specific documents prior to undersigned counsel’s

discovery of them while working on another case in 2002. The

circuit court did not accept the factual allegations as true,

nor follow the law as explained by the United States Supreme

Court in Banks when it denied an evidentiary hearing saying that

the information was known or could easily have been known by Mr.

Rivera’s counsel.

Alternatively, the circuit court summarily denied

Claim I because “the Defendant has failed to establish that

Zuccarello received a plea deal for testimony against the

Defendant” (3PC-R., “Supplemental Record, 173). Of course, Mr.

Rivera cannot “establish” anything without an evidentiary

hearing. All that Mr. Rivera can do is allege as a factual

State,894 So. 2d 161 (Fla. 2004); Cardona v. State, 826 So.2d

968 (Fla. 2002); Hoffman v. State, 800 So.2d 174 (Fla. 2001);

Rogers v. State, 782 So.2d 373 (Fla. 2001); State v. Hugins, 788

So.2d 238 (Fla. 2001); Gorham v. State, 597 So.2d 782 (Fla.

1992); Roman v. State, 528 So.2d 1169 (Fla. 1988).

55

matter based upon the newly discovered documents that Zuccarello

in exchange for a reduction in his criminal liability agreed he

would “in his cooperation, be giving statements, which will be

tested by polygraph as to their veracity; the defendant will

further agree to testify at all proceedings in which he is

subpoenaed.” Because the plea offer specifically refers to the

detective that Zuccarello testified he told that Mr. Rivera had

made statements to him and because the plea offer specifically

refers to the prosecuting attorney who was then assigned to

prosecute Mr. Rivera, the allegation was and is made that the

obligation to give statements and to testify when subpoenaed

included Mr. Rivera’s case. At an evidentiary hearing, it would

fall upon Mr. Rivera to establish the facts alleged.

Further, the court’s conclusion is based upon a

misreading of the plea agreement, a misreading which an

evidentiary hearing would resolve. The court stated that Mr.

Rivera had not “establish[ed]” that Zuccarello received a deal

for testifying against Mr. Rivera because “[t]he plea deal cited

by the Defendant specifically excludes Zuccarello’s

participation in any homicide case” (3PC-R., “Supplemental

Record,” 173). The relevant portion of the plea agreement

states:

56

any person resulted will be examined on a case-by-case

basis, and a filing decision made accordingly. Any

participation in any HOMICIDE case will be handled

separate and apart from this agreement, by Assistant

State Attorneys in the Homicide division.

(3PC-R., “Supplemental Record,” 63). This paragraph concerned

Zuccarello’s criminal liability. In context, the agreement is

clearly referring to homicides in which Zuccarello participated,

court’s misapprehension of Mr. Rivera’s allegations and its

refusal to accept them as true warrants a reversal and requires

an evidentiary hearing.

Additionally, the circuit court completely ignored the

information contained in the “Synopsis” that certainly

contradicted Zuccarello’s claim of not trying to seek benefit

Florida Department of Law Enforcement (lead agant:

and Pyers, and their investigators; and other law

enforcement offices.

The defendant will, in his cooperation, be giving

statements, which will be tested by polygraph as to

and the defendant will testify honestly.

57

for himself when he first contacted law enforcement about Mr.

Rivera. According to the “Synopsis,” Zuccarello in early April

was very candid about his intentions:

The CI candidly admits he has not told

investigators everything he knows and is holding back

some information until he sees how events are shaping

up. In addition to the crimes herein detailed the CI

is compiling a list of other crimes committed and

states that he already has a list of of about 25 HIR

in the Hollywood area compiled.

(3PC-R., “Supplemental Record,” 69).

As further support for its alternative reason for

summarily denying Claim I, the circuit court recited that (1) in

prior post-conviction proceedings, the trial prosecutor

testified that there was no plea agreement with Zuccarello, (2)

trial counsel cross-examined Zuccarello regarding his

cooperation in other cases, and (3) Mr. Rivera made “similar

admissions” to other witnesses (3PC-R., “Supplemental Record,”

173-74). Thus, the court concluded, “the exclusion of Mr.

Zuccarello’s testimony would not have changed the outcome of the

trial” (Id. at 174). Again, the circuit court did not accept

Mr. Rivera’s allegations as true, not once mentioning the

substance and quality of the evidence Mr. Rivera had proffered.

First, at trial, Zuccarello testified that he had received no

promises and made no deals with the State in exchange for his

testimony in Mr. Rivera’s case. The written plea agreement

58

shows that this testimony was false: the plea agreement required

Zuccarello to cooperate with Broward sheriff’s deputies and

Broward prosecutors. Second, the court’s reasoning does not

recognize that the existence of the written plea agreement

requiring Zuccarello’s cooperation shows that the trial

agreement has much higher significance in impeaching Zuccarello

than trial counsel’s attempts to show he had cooperated in other

cases. Fourth, the “admissions” Mr. Rivera supposedly made to

Zuccarello were much more specific and detailed than anything he

allegedly said to anyone else. Further, the documentation

impeaching Zuccarello would have led the jury to question the

veracity of the other jailhouse informants and would have led

trial counsel to investigate those informants more thoroughly.

does not mention the documentation indicating that Zuccarello

disclose the plea offer impeaches not just Zuccarello, but law

enforcement and the prosecuting attorney and the means that they

would go in trying to obtain evidence to convict Mr. Rivera,

while withholding anything that might assist the defense. Kyles

v. Whitley, 514 U.S. 419, 446 (1995)(“Even if Kyles’s lawyer had

followed the more conservative course of leaving Beanie off the

stand, though, the defense could have examined the police to

good effect on their knowledge of Beanie’s statements and so

have attacked the reliability of the investigation in failing

even to consider Beanie’s possible guilt and in tolerating (if

not countenancing) serious possibilities that incriminating

evidence had been planted.”).

59

was a State agent well before he allegedly obtained admissions

from Mr. Rivera or that this documentation shows that Mr.

Rivera’s rights to counsel and silence were violated when the

State placed Zuccarello, a confidential informant, with Mr.

Rivera. Finally, the circuit court’s conclusion that the new

facts “would not have changed the outcome of the trial” is the

wrong legal analysis. When the State presents false or

misleading evidence, the State has the burden of showing beyond

a reasonable doubt that the error was harmless. Guzman v.

State, 868 So. 2d 498, 506 (Fla. 2003). Clearly, the circuit

court should have conducted an evidentiary hearing on these

issues.

Claim II of Mr. Rivera’s Rule 3.850 motion alleged

that the State withheld favorable, material evidence or,

alternatively, that trial counsel unreasonably failed to

discover and present that evidence (3PC-R., “Supplemental

specifically pled the new facts upon which the claim was based

(3PC-R., “Supplemental Record,” 20-38)), as well as facts

regarding Mr. Rivera’s diligence in learning these facts (Id.).

The circuit court summarily denied the claim as

successive because “the information presented by the Defendant

in this claim was either in the Defendant’s possession or was

60

easily discoverable” (3PC-R., “Supplemental Record,” 174). As

it did with Claim I, the court’s conclusion did not accept as

true Mr. Rivera’s allegations regarding diligence. The plea

offer was not disclosed by the State. The existence of the jail

records was in fact denied by the State. And, “Synopsis” of

witnesses’ statements pursuant to a state attorney subpoena are

as a matter of routine not disclosed by prosecutors in this

State. See Smith v. State, 931 So. 2d at 799. As to Mr.

Rivera’s specific allegations that these documents were not

previously disclosed, an evidentiary hearing is required.

Alternatively, the circuit court denied Mr. Rivera’s

claim because some of the facts alleged did not exist at the

time of trial and therefore, “[t]he documents discussed in claim

two are not newly discovered,” citing Brady v. Maryland, 373

U.S. 83 (1963) (3PC-R., “Supplemental Record,” 174-75).

However, although recognizing that this claim included the

allegations regarding Zuccarello made in Claim I (id.), the

court did not discuss or analyze any of those allegations in

denying Claim II. Additionally, the claim included other

factual allegations based upon documents in existence at the

time of Mr. Rivera’s trial (3PC-R., “Supplemental Record,” 27,

41). Further, the court did not consider the effect on trial

counsel’s investigative efforts had the new facts been disclosed

61

State, 31 Fla. L. Weekly S114, 2006 Fla. LEXIS 261 (Fla.

February 16, 2006). Finally, the circuit court made no

cumulative analysis of the facts not presented at Mr. Rivera’s

trial, including the new information about Zuccarello, the DNA

test results, the impeaching evidence available regarding the

other jailhouse informants, the fact that Mr. Rivera was denied

his rights to counsel and to silence when the State placed

Zuccarello with him, and the fact that sheriff’s deputies

violated Mr. Rivera’s right to counsel during custodial

interrogation, as the Rule 3.850 motion argued the court should