Rivera v. State

• Decision Date: 11 June 1998
• Docket Number: No. 86528,86528
• Citation: 717 So.2d 477
• Parties: 23 Fla. L. Weekly S343 Michael T. RIVERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 477

717 So.2d 477

23 Fla. L. Weekly S343

Michael T. RIVERA, Appellant, v. STATE of Florida, Appellee.

No. 86528.

Supreme Court of Florida.

June 11, 1998.

Rehearing Denied Sept. 9, 1998.

Peter Warren Kenny, Capital Collateral Regional Representative-Southern Region, Miami; and Gail E. Anderson, Assistant CCR, and Harun Shabazz, Assistant CCR, Office of the Capital Collateral Representative, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

Michael T. Rivera, a prisoner under sentence of death, appeals an order entered by the trial court below pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm in part, reverse in part, and remand for an evidentiary hearing on the penalty phase effectiveness of counsel.

PROCEDURAL HISTORY

The facts of this case are detailed in Rivera's direct appeal wherein we affirmed both his first-degree murder conviction and sentence of death. Rivera v. State, 561 So.2d 536 (Fla.1990). Rivera filed his 3.850 motion to vacate judgment and sentence on October 31, 1991, as well as a motion to disqualify the trial court judge. Rivera subsequently filed two amended 3.850 motions and two additional motions to disqualify the trial judge. The motions were all denied. The trial court held evidentiary hearings on claims II (F,J, and K), XIX, XX, and XXI. The trial court summarily denied the remainder of Rivera's claims. The trial court subsequently denied all relief on June 22, 1995. A motion for rehearing was denied on August 30, 1995.

APPEAL

Rivera raises twenty claims of error in this appeal, ¹ most of which may be disposed of summarily. ² We address the remaining issues in turn.

MOTION TO DISQUALIFY JUDGE

As his first claim of error, Rivera argues that the trial judge, Judge Ferris, has exhibited bias against Rivera throughout the proceedings in this case and cites several specific instances as bases for his motion to disqualify the judge. For example, Rivera claims that the judge's written response to a parole commission inquiry that "I am inalterably opposed to any consideration for Executive Clemency and I believe the sentence of the court should be carried out as soon as possible" was sufficient to disqualify the judge from further presiding over this case. This claim is without merit.

We have repeatedly held that a motion to disqualify a judge "must be well-founded and contain facts germane to the judge's undue bias, prejudice, or sympathy." Jackson v. State, 599 So.2d 103, 107 (Fla.1992); Gilliam v. State, 582 So.2d 610, 611 (Fla.1991); Dragovich v. State, 492 So.2d 350, 352 (Fla.1986). The motion will be found legally insufficient "if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing." Correll v. State, 698 So.2d 522, 524 (Fla.1997). The fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or "allegations that the trial judge had formed a fixed opinion of the defendant's guilt, even where it is alleged that he judge discussed his opinion with others," are generally considered legally insufficient reasons to warrant the judge's disqualification. Jackson, 599 So.2d at 107 Under those standards, we now examine Rivera's proffered bases for Judge Ferris's disqualification. ³

First, regarding Judge Ferris's letter to the Florida Parole Commission, we found no merit in the same claim made by the defendant in Suarez v. Dugger, 527 So.2d 190, 192 (Fla.1988). As part of the official clemency process for at least the last few decades, the Parole Commission seeks comments from sentencing judges ⁴ when considering clemency for any inmate, not only those with capital sentences. Here, in accord with that official process, Judge Ferris was simply responding to a query from the Parole Commission in expressing his views about Rivera's sentence. We consider this a legitimate act by a trial judge, and, indeed, can think of no person better positioned to reply to the commission's inquiry about a prisoner's sentence. As a matter of policy, we will not establish bright line rules regulating comments trial judges may make in response to Parole Commission queries in the course of the official clemency process. We do not find that the judge's comments here constitute a prejudgment of any pending or future motions that Rivera may file in his court or that they were made outside the official clemency process in a manner indicating a predisposed bias against the defendant. Compare Suarez, 527 So.2d at 192 (finding judge's extra-judicial statements to Naples Daily News compelled judge's disqualification because statements were sufficient to warrant fear on defendant's part that he would not receive a fair hearing from judge). Accordingly, we conclude that the trial court properly denied this claim as a ground for disqualification.

Second, Rivera claims that Judge Ferris based his death sentence on non-record information gained while presiding over Rivera's attempted first-degree murder trial, the Jennifer Goetz case. However, Rivera does not divulge precisely what facts from the other case Judge Ferris allegedly relied on in imposing a sentence of death. As such, his motion was not legally sufficient to merit the judge's disqualification. Jackson; Gilliam; Dragovich.

Finally, as the State notes, we allow post-conviction depositions of the judge who presided over the defendant's trial "only when the testimony of the presiding judge is absolutely necessary to establish factual circumstances not in the record." State v. Lewis, 656 So.2d 1248, 1250 (Fla.1994). The judge's thought processes may not be inquired into and the judge may refuse to answer any question he or she deems intrusive. Id. at 1250. We also cautioned that such discovery techniques "should not be utilized as a technique to disqualify the original trial judge from further hearings in the case. The need to have a trial judge testify is very limited in scope and particularly applies only to factual matters that are outside the record." Id. at 1250 n. 3 (emphasis added).

In applying that standard to the facts of this case, we find that Rivera's claim is without merit. As the State points out, Rivera's claim regarding Judge Ferris's motivation in appointing Edward Malavenda as his trial counsel is, first, an impermissible intrusion into the judge's thought processes, and, second, totally misplaced since Malavenda had already been previously appointed to represent Rivera in two other cases by Judge Barry Stone on March 4, 1986, and Judge Ferris subsequently appointed him on August 14, 1986 to represent Rivera in the murder trial also. Similarly, Judge Ferris's prior representation of Juror Thorton's restaurant was disclosed by the judge during voir dire. Next, as noted above, Rivera's claim regarding Judge Ferris's alleged reliance on non-record evidence is legally insufficient. Finally, Rivera's other claims are issues that should have been raised on direct appeal, but are recast in a motion to disqualify. ⁵ Therefore, we conclude that Rivera did not proffer legally sufficient reasons requiring the judge's disqualification.

EXCLUSION OF EVIDENCE

Rivera argues that the jury never heard the evidence of alibi witnesses who allegedly stated that he was with them at the time of the murder. He claims that Mark Peters presented unrebutted testimony at the evidentiary hearing that Rivera picked him up between 6 and 6:30 and remained with him for the next thirty to thirty-five minutes. Rivera maintains that Peters' testimony provides him with an alibi because the victim was last seen alive between 6:30 and 7 and a deputy found her abandoned bicycle before 7:30. This claim is without merit.

The issue of when Rivera picked up Mark Peters on the night of the murder was strongly contested at the evidentiary hearing. Eventually, the parties seemed to agree that Peters' statement to the police in February 1986, several weeks after the murder, was his most accurate recollection of the approximate times. When asked by the police when Rivera picked him up at work, Peters replied: "Between 5:00 and 6:00, more than 6:00 and 7:00, but closest to 6:00." Peters also had stated that he was on his way home from work sometime between 6:15 and 7 p.m., after already dropping Rivera off at his house. The trial court denied Rivera relief on this claim after finding that Peters' own decision to leave the area prevented him from testifying at trial.

In order to establish an ineffective assistance of counsel claim, Rivera must show that counsel's performance was so deficient as to demonstrate that he was not functioning as "counsel" within the meaning of the Sixth Amendment, and, more importantly, that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is afforded wide latitude in providing a criminal defense and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

Peters left Orlando after giving his information to both the police and Rivera's counsel, Edward Malavenda. He testified at the evidentiary hearing that he did not tell the police he was leaving and did not remember telling Malavenda he was leaving. Consequently, when the trial commenced, Malavenda had no alibi witnesses to present. Arguably, Malavenda should have presented Peters' deposition since he should have been able to establish his unavailability. Nevertheless neither Peters' deposition nor his live testimony would have provided Rivera with an alibi for the crucial time after 7 p.m., the approximate time after which the victim was murdered. ...