State v. Matera

• Decision Date: 12 July 1972
• Docket Number: No. 41925,41925
• Citation: 266 So.2d 661
• Parties: The STATE of Florida, Petitioner, v. John MATERA and Gennaro Galtieri, Respondents.
• Court: Florida Supreme Court

Page 661

266 So.2d 661

The STATE of Florida, Petitioner, v. John MATERA and Gennaro Galtieri, Respondents.

No. 41925.

Supreme Court of Florida.

July 12, 1972.

Rehearing Denied Oct. 9, 1972.

Robert L. Shevin, Atty. Gen. and Arnold R. Ginsberg, Asst. Atty. Gen., for petitioner.

Milton E. Grusmark, Miami Beach, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 254 So.2d 843, a decision certified as passing on a question of great public interest, to-wit:

'Whether the credibility of a witness may be attacked collaterally pursuant to Criminal Procedure Rule 3.850.'

The facts as stated in the opinion of the District Court are in pertinent part as follows: ¹

'The appellants were found guilty after a jury trial of robbery. Galtieri was sentenced to prison for twenty-five years and Matera was sentenced to prison for life. Appeals were brought by both appellants and the judgments and sentences were affirmed.

'Thereafter a motion for relief pursuant to CrPR 1.850 was brought on behalf of both appellants seeking relief upon several grounds. This motion was with the court's permission amended and supplemented. The trial judge entered an order for evidentiary hearing. Later upon a review of the entire record, after the filing of a supplemental affidavit, the trial judge entered the order appealed which rescinded the order for evidentiary hearing and denied the motion as supplemented without evidentiary hearing.

'Our review of the record convinces us that there is only one ground in the motion and amended motions which is not either refuted by the record or foreclosed by the appeal from the judgment. The appellants allege that at their trial the state used the testimony of one Bruce Braverman, and that during the trial it was revealed that Braverman had, on more than one occasion, testified before a New York State Grand Jury. It was further alleged that the state knew of grand jury testimony which would have impeached the testimony of Braverman at the trial.

'A withholding by the state of knowledge of evidence known to be useful to the defendant, even though useful only for impeachment purposes, can be grounds for a new trial. See Pitts v. State, Fla.1971, 247 So.2d 53; State v. Pitts, Fla.App.1971, 249 So.2d 47.'

The Florida rule in question, Rule number 3.850, 33 F.S.A., was adopted from, and is essentially verbatim, § 2255 of Title 28 of U.S.Code, in effect since June 25, 1948. The Reviser's Note following § 2255 states:

'This section restates, clarifies and amplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus.' ²

Our rule, like its federal counterpart, does not create new substantive rights. Its purpose is to afford an efficient procedure for post-conviction relief 'on any grounds which subject them (convictions) to collateral attack.' ³ No new grounds for post-conviction relief were created by the rule. Thus, in Birtch v. United States, the United States Circuit Court of Appeal, Fourth Circuit, stated: ⁴

'Relief under 28 U.S.C.A. § 2255 may be granted only where it appears 'that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the consitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.' It should be borne in mind that the purpose of the section was not to enlarge the class of attacks which may be made upon a judgment of conviction, but to provide that the attack must be made in the court where the sentence was imposed and not in some other court through resort to habeas corpus, unless it appears that the remedy by motion is inadequate.' (e.s.)

This Court in Austin v. State, ⁵ quoted with approval from the Birtch case and stated:

'It is therefore clear that Section 2255 is not intended to broaden the class of attacks which may be made upon a judgment of conviction or sentence; rather, the attack through motion to vacate must be made under the conditions specified.'

In the Austin case, this Court went on to hold: ⁶

'As to appellant's contention of false swearing or use of perjured testimony, a reading of this portion of the motion shows it to constitute an attempt to argue the credibility of testimony given by certain state witnesses and claimed conflicts in that testimony. Additionally, in order to have a sentence set aside on the ground that perjured testimony was used, it is necessary for the motion to show that the testimony was perjured and that the prosecuting officials, at the time of its use, knew it was perjured.

Credibility of a witness, as such, like sufficiency of the evidence, has not been recognized as a ground supporting collateral attack on a conviction. Even a petition alleging perjury of a witness at trial is insufficient unless it is also alleged that the perjured testimony formed the basis of the conviction, was knowingly used by the prosecution and was unknown to defendant at the time of trial or during appeal. ⁷ The somewhat related ground of knowing suppression of evidence by the State must also be accompanied by allegations that the evidence suppressed was essential to the conviction and that defendant was unaware of its existence or unable to obtain its disclosure. ⁸ Similarity between the foregoing requirements for post-conviction relief under modern rules with the requirements of the ancient writ of coram nobis are apparent. ⁹

The amended motion to vacate, filed April 22, 1970, contains the following allegations pertinent to the question certified:

'Testimony was given by one Bruce Braverman who at the time was incarcerated in the State of New York. Utilization of Grand Jury testimony for cross-examination of Braverman revealed that other Grand Jury testimony had been given by Braverman which was not available to the Defendants or their attorneys at trial. It has just been revealed to counsel for Defendants that prior New York, Grand Jury testimony of Braverman completely impeached the statements presented to the jury in this Court. The Defendants were not aware of the substance of the prior Grand Jury testimony in New York. The State, however, was aware of that testimony. The State of Florida, through its close association with the New York authorities, knew or should have known that contradictory testimony had been given and would have exculpated the Defendants.'

The trial court, in its order of July 6, 1970, denying the motion to vacate without evidentiary hearing, points out that the defendants admittedly knew at the time of trial that Bruce Braverman had given testimony more than once to a grand Jury in New York and that Braverman was called as a court witness and both sides were given ample opportunity ot corss-examine given ample opportunity to cross-examine

The record reveals that Braverman, called as a court's witness, was questioned by the Judge initially and impeached by both sides. Braverman stated that he was a convicted felon and had known the defendant for approximately sixteen months. He testified that he was the defendants in New Your on March 16, 1966, and engaged in general conversation but with no mention being made of the Harbor Island Spa. the Florida establishment subsequently robbed by the defendants. At this point the State impeached the witness Braverman by showing contradictory statements given before a New York Grand Jury on July 21, 1966. ¹⁰

During his testimony, Braverman repeatedly referred to the fact that he had testified at two Grand Jury proceedings in the State of New York, one on May 18 and one on July 21, 1966. At one point, the witness volunteered that the statements he had made at the two Grand Jury proceedings might be inconsistent. There followed a lengthy discussion between the court and counsel out of the presence of the jury as to whether it was necessary to obtain the transcript of Braverman's testimony in the first Grand Jury proceeding. Defense counsel accused the prosecuting attorney of having access to the transcripts of both proceedings in New York and choosing to bring back only the one favorable to the State. This charge was categorically denied by the prosecuting attorney. The Judge concluded that the testimony from the last Grand Jury proceeding in New York could be used for impeachment.

After the jury was brought back in, Braverman admitted that he had testified before the New York Grand Jury that the defendant Galtieri told him when they met in New York in March of 1966 that he was going to Miami, Florida, to make a 'score', meaning to steal some money; that Braverman had asked Galtieri for a loan of $1,000 and been told that he could have the money when he, Galtieri, got back from Miami. This was the Sum total of Braverman's testimony as it pertained to the robbery of the Harbor Island Spa, for which the defendants were on trial.

Braverman was so extensively impeached by both the prosecution and the defense, covering hundreds of pages of transcript, that little, if anything, remained of his credibility. But even if the jury chose to rely on his testimony that one of the defendants said in March of 1966 that he was going to Miami to make a 'score' and infer therefrom that the Harbor Island Spa robbery was the intended 'score', the evidence is of little significance in the case. Defendants Galtieri and Matera were unequivocally identified by the night auditor of the Harbor Island Spa and a laundry truck driver, both of whom were accosted and handcuffed by the defendants, who wore no masks during the robbery.

As we have indicated, the matter of Mr. Braverman's credibility was extensively litigated at the trial. The question was submitted to the jury on special instruction from the...