Preview
Filing # 122652987 E-Filed 03/08/2021 10:40:27 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR OSCEOLA COUNTY
STATE OF FLORIDA CASE NO.: 49-2019-CF-003738-A-O
Plaintiff,
Vv.
CHRISTOPHER OTERO-RIVERA,
Defendants.
STATE’S RESPONSE & OBJECTION TO DEFENDANT’S MOTION TO SEVER
DEFENDANTS
COMES NOW the State of Florida, by and through the undersigned Designated Assistant
State Attorney, responding to Defendant’s Motion to Sever Defendants (“Motion”), stating as
follows:
1. Defendant was indicted on March 5, 2020 by the Osceola County Grand Jury for
the offenses of Second Degree Murder, Abuse of a Human Body, and Tampering with Evidence
for the murder of his estranged wife, Nicole Montalvo, and subsequent mutilation of her body in
an attempt to conceal he and his co-defendant Angel Rivera’s criminal activity.
2. On April 20, 2020, the State filed its Amended Information in this cause joining
Defendant and co-codefendant Angel Rivera pursuant to Florida Rule of Criminal Procedure
3.150.!
3. Co-defendants Christopher Otero-Rivera and Angel Rivera—a son and his father—
are both charged with the offenses of Second Degree Murder, Abuse of a Human Body, and
Tampering with Physical Evidence. Thus, both co-defendants are “charged with accountability
for each charge,” permitting joinder pursuant to Rule 3.150(b)(1). Fla. Rule Crim. P. 3.150(b)(1)
(“Two or more defendants may be charged in the same indictment or information on which they
are to be tried when . . . each defendant is charged with accountability for each offense charged.”).
4. The State’s evidence will show victim Nicole Montalvo was last seen alive at 4:00
p-m. on Monday, October 21, 2019, immediately before traveling to the property where the co-
1 The State subsequently filed its Second Amended Information consolidating a third co-defendant, Wanda Rivera,
with the offenses of Tampering with Physical Evidence, Accessory After the Fact, and False Statements to Law
Enforcement. The State dismissed these charges as to Wanda Rivera on March 5, 2021. However, neither the filing
nor the dismissal of these charges has any bearing on this Motion since the actions did not affect or alter the charges
against co-defendants Christopher Otero-Rivera or Angel Rivera.
1defendants lived. The evidence will show that her remains were located on that property at 3925
Hixon Avenue in St. Cloud, Florida on Thursday afternoon, October 24, 2019 while law
enforcement executed a validly issued search warrant. The State will introduce evidence, in the
form of GPS records, demonstrating the co-defendants worked in concert to burn and bury Nicole
Montalvo’s remains on two separate properties. Jurors in the trial will hear evidence suggesting
the co-defendants worked together to remove the victim’s vehicle from their property while also
attempting to use her cell phone to confuse or mislead law enforcement as to their commission of
the murder. Most importantly in terms of Defendant’s Motion, the jurors will hear that both co-
defendants, independent of one another, made statements indicating their desire to murder Nicole
Montalvo, and that they worked in concert and conspired to harm Nicole Montalvo to obtain
custody of her child, Elijah. Thus, the offenses each co-defendant is charged with constitute the
“same connected acts or transactions” and are properly joined pursuant to Rule 3.151(a). Fla. R.
Crim. P. 3.151(a) (“For purposes of these rules, 2 or more offenses are related offenses if they are
triable in the same court and are based on the same act or transaction or on 2 or more connected
acts or transactions.”).
5. The State having established that both co-defendants and their offenses are properly
joined by the plain language of the Florida Rules of Criminal Procedure, Defendant bears the
burden of establishing that denial of severance by this Court would be an abuse of discretion. Dove
v. State, 287 So.2d 384, 385 (Fla. Ist DCA 1973). Though Defendant’s Motion has three (3)
separate sections, Defendant only advances two (2) reasons why this Court should sever the trials
of Christopher Otero-Rivera and Angel Rivera in this time of extremely sparse judicial resources.
First, Defendant argues that “Bruton Issues Require” severance of his trial from that of Angel
Rivera. (Def. Mot. Pg.4) Second, Defendant relies on this Court’s need to “promote a fair
determination of the guilt or innocence of 1 or more defendants” under Florida Rule of Criminal
Procedure 3.152(b)(1)(B) as grounds for separation. (Def. Mot. Pgs. 5-9) This second ground
makes vague references to evidence that will “confuse and mislead the jurors” while also arguing
the admission of Williams Rule evidence in this case invokes the “fair determination” provision of
the Rule. Both of Defendant’s claims are devoid of any factual or legal support.
6. The State concedes that any attempt to admit an extrajudicial statement of one co-
defendant that is incriminating of the other, where that co-defendant did not testify and was not
subject to cross-examination, would require severance pursuant to the United States SupremeCourt’s decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
The State will not admit any such statements in this trial. Defendant knows that and knew that
prior to filing of this Motion.
7. Defendant goes to great lengths in the “Fact” section of his Motion to detail specific
quotes from letters Angel Rivera wrote that Defendant c/aims are inculpatory. (Def. Mot. §f] 11.-
12.) Defendant also relies upon the “proffer” Angel Rivera provided to the State on June 20, 2020
in claiming there are Bruton “issues” requiring severance.” (Def. Mot. {| 10.) Interestingly, this
reliance comes despite the email the State sent counsel for both co-defendants on February 17,
2021 regarding trial preparations. Attached to this email was the complete list of exhibits the State
intends to admit in this trial. This list did not include any letters written by Angel Rivera, nor did
it include Angel Rivera’s “proffer.” In the event the State was not clear, the State will not seek to
admit any statements of either co-defendant that are inculpatory against the other.
8. The State does intend to admit statements of both co-defendants they provided to
law enforcement and accordingly, on November 3, 2021, the State sent counsel for both co-
defendants an email identifying the specific redactions it believed necessary for admission of these
statements. Again, it is the State’s position that these interviews contain no statements by one
inculpating the other. That said, the State has no objection to the Court reviewing this statement
for any alleged Bruton issues Defendant believes exists. There are no Bruton issues requiring
severance in this cause.
9. Defendant’s second argument is that severance is necessary to ensure a “fair
determination of the issues.” (Def. Mot. Pg.5) The first prong of Defendant’s argument appears
to be based on his belief that the evidence in this cause will “confuse and mislead” the jurors,
though he never says how that will occur. Defendant acknowledges the State is not seeking
admission of any inculpatory statements by one co-defendant against the other, yet then makes the
following, unsupported, conclusory statement: “[T]he remaining evidence does no more than
confuse and mislead the jurors as the State has no direct evidence linking or implicating either one
of the defendants in the crime charged.” (Def. Mot. Pg.5) As an initial matter, Defendant’s
statement is just wrong. The State will admit direct evidence, in the form of statements both Angel
?“Proffer” is in quotation marks because the term typically indicates a statement given in advance of trial testimony
and therefore based in truth. There was very little truth coming from the mouth of Angel Rivera in his June 20,
2020 statement.Rivera and Christopher Otero-Rivera made to witnesses independently, that each man desired to
kill Nicole Montalvo. Secondarily, Defendant offers zero explanation as to how any one item of
evidence the State intends to admit against either co-defendant will confuse the jury as to the guilt
or innocence or the other. That is the relevant issue for purpose of severance—and Defendant is
silent on that matter. Defendant is silent on this matter because there is nothing to say. There is
no confusion. There is no misleading.
10. Defendant attempts to ground his argument in some law by citing to Menendez v.
State, 368 So.2d 1278 (Fla. 1979) where Defendant acknowledges the appellate court affirmed the
trial court’s denial of severance. Grasping, Defendant tries to divine some unstated intent of the
Florida Supreme Court by stating the ruling “seemed to suggest that if this was a circumstantial
case severance would have been mandated.” It is first worth noting the Menendez Court’s
statement is clearly dicta since its actual holding was that “[i]t is impossible to conclude on this
record that Menendez was prejudiced in the least.” Menendez, 368 So.2d at 1280. Additionally,
as was pointed out above, there is direct evidence of the guilt of each co-defendant in this case in
the form of their statements of intent. Finally, the Menendez court was operating under standards
for circumstantial evidence that no longer exist since the Florida Supreme Court’s decision in Bush
v. State, 295 So.3d 179 (Fla. 2020). Even if the State’s case were entirely circumstantial, the State
must no longer rebut the reasonable hypothesis of innocence. Bush, 295 So.3d at 200. Rather, the
State must merely present evidence upon which a rationale trier of fact can find the elements
beyond a reasonable doubt. /d. Defendant’s reliance on Menendez is misplaced and he fails to
provide the Court a single instance of confusion requiring severance.
11. The second prong of Defendant’s “fair determination” argument centers around the
State’s admission of Williams Rule evidence and, like his “confusion of the issues argument,” is
quite hard to follow. As to this second prong, Defendant’s first argument is that the Williams Rule
evidence is not relevant. Defendant then adopts Angel Rivera’s argument that the cases should be
severed not because of prejudice to Defendant, but to the co-defendant. Defendant then contradicts
himself—and this argument—by acknowledging the Williams Rule evidence is inextricably
intertwined with the guilt of both co-defendants. None of what Defendant alleges, or attempts to
allege, suggests severance is appropriate in this case.12. The relevance and admissibility of the Williams Rule evidence in this cause has
already been decided as stated in the late, Honorable Jon Morgan’s Order entered on December
29, 2020. Defendant’s views on admissibility and relevance have already been heard and rejected.
13. Defendant’s second argument that a “fair determination” requires severance is
essentially that the admission of Williams Rule evidence against Defendant prejudices his co-
defendant to the extent separate trials are required. Defendant directs the Court to Hernandez v.
State, 570 So.2d 404 (Fla. 4th DCA 1990) for the proposition that “a motion for severance should
be granted if there is evidence directed at a co-defendant which is prejudicial to defendant.”
Hernandez, 570 So.2d at 405. The premise of Defendant’s argument is flawed in that the Order
admitting the Williams Rule demonstrates some of this evidence is admissible against both
Defendant and Angel Rivera, and that the simplistic analysis found in Hernandez and used by the
Fourth District Court of Appeal has not been followed by the Florida Supreme Court.?
14. Judge Morgan’s December 29, 2020 Order admitting the Williams Rule evidence
in this cause concludes with the following finding:
Evidence of the October 3 [2018] attack on Ms. Montalvo, Defendant’s
subsequent criminal prosecution, placement on home confinement, being
served with a domestic violence injunction and plans to have a cellmate
plant drugs in Ms. Montalvo’s car to allow Defendant to obtain custody is
all intertwined with the instant charges and necessary to allow the jury to
have a full picture of the context within which the events transpired.
(Order, P.2) Much, if not most, of this evidence would be admissible against Angel Rivera if a
separate trial were granted. This is due to the conspiracy between Christopher Otero-Rivera and
Angel Rivera to end the life of Nicole Montalvo. For example, the State intends to introduce
evidence that Angel Rivera sat in the gallery during the trial of Christopher Otero-Rivera’s co-
defendant, Toni Rocker, for the 2018 kidnapping of Nicole Montalvo because of the cell phone
testimony Angel Rivera heard and then used to conceal he and his son’s murder of the victim in
this case. Defendant’s status on probation and home confinement would be admissible against
Angel Rivera because it is inextricably intertwined with why the murder was committed at the
Hixon Avenue residence where Defendant could not leave, as well as why Defendant was wearing
the electronic monitor the State will use to show Defendant was involved in the removal of the
3 WestLaw indicates that Hernandez has been cited in three (3) appellate decisions since it was issued in 1990. Each
of those decisions is from the Fourth District Court of Appeal.
5victim’s car from the property and the burning and burying of the victim’s remains. Evidence of
Defendant’s attempt to plant drugs on the victim will be admissible against Angel Rivera because
the evidence will show Angel posted the bond for the relevant cellmate and then met with him and
propositioned him to murder Nicole Montalvo. Thus, unlike the facts in Hernandez, it is not
accurate to say here, as that court did there, that the evidence admitted “would not be relevant in a
trial against” co-defendant Angel Rivera. That said, the State concedes that the excited utterances
from Nicole Montalvo admitted in Judge Morgan’s Order would not, alone, be admissible against
Angel Rivera. However, that fact alone does not require severance under the proper analysis used
by the Florida Supreme Court and the federal courts around this nation.
15. The Florida Supreme Court confronted a severance issue similar to the one in
Hernandez in its decision in Johnson v. State, 720 So.2d 232 (Fla. 1998). In Johnson, the trial
court denied the defendant’s motion to sever despite admitting evidence against Johnson’s co-
defendant that was prejudicial and not otherwise admissible against Johnson. Johnson, 720 So.2d
at 236. The Florida Supreme court found no error, noting that “the trial judge ensured that the
evidence in this case was presented to the jury in a manner designed to eliminate juror confusion”
because “the judge instructed the jury that such testimony could only be considered as evidence of
guilt against [the co-defendant] and not [Johnson].” /d. Thus, the Florida Supreme Court has
rejected the simplistic analysis the Fourth District Court of Appeals applied in Hernandez and
instead adopted an analysis finding that “[a] severance is not necessary when the evidence is
‘presented in such a manner that the jury can distinguish the evidence relating to each defendant’s
acts, conduct and statements, and then apply the law intelligently and without confusion to
determine the individual’s guilt or innocence.’” Jd. (quoting Coleman v. State, 610 So.2d 1283,
1285 (Fla. 1982).
16. The Florida Supreme Court discussed the principles surrounding severance
pursuant to Florida Rule of Criminal Procedure 3.152—the principles relied upon in Johnson and
ignored in Hernandez—in its decision in McCray v. State, 416 So.2d 804 (Fla. 1982):
The object of the rule is not to provide defendants with an absolute right,
upon request, to separate trials when they blame each other for the crime.
Rather, the rule is designed to assure a fair determination of each
defendant's guilt or innocence. This fair determination may be achieved
when all the relevant evidence regarding the criminal offense is presented
in such a manner that the jury can distinguish the evidence relating to each
defendant's acts, conduct, and statements, and can then apply the lawintelligently and without confusion to determine the individual defendant's
guilt or innocence. The rule allows the trial court, in its discretion, to grant
severance when the jury could be confused or improperly influenced by
evidence which applies to only one of several defendants.
McCray, 416 So.2d at 806. The McCray Court went on to discuss “some general rules” that have
been established for trial courts charged with determining when severance should, and should not,
be granted:
[T]he fact that the defendant might have a better chance of acquittal or a
strategic advantage if tried separately does not establish the right to a
severance. Nor is hostility among defendants, or an attempt by one
defendant to escape punishment by throwing the blame on a codefendant,
a sufficient reason, by itself, to require severance. If the defendants
engage in a swearing match as to who did what, the jury should resolve
the conflicts and determine the truth of the matter.
Id. (citations omitted). See also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 937,
122 L.Ed.2d 317 (1993) (holding that prejudice from joint trials warrants severance when there is
a “serious risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence”). Federal court
decisions are in line with the view expressed by the Florida Supreme Court in McCray.
17. The Eleventh Circuit Court of Appeals’ decision in United States v. Blankenship,
382 F.3d 1110 (11th Cir. 2004) lays out some key principles surrounding severance when the issue
is undue prejudice:
In general, the strong presumption is that jurors are able to
compartmentalize evidence by respecting limiting instructions specifying
the defendants against whom the evidence may be considered. The mere
fact that there may be an “enormous disparity in the evidence admissible
against [one defendant] compared to the other defendants” is not a
sufficient basis for reversal. A defendant does not suffer compelling
prejudice, sufficient to mandate a severance, simply because much of the
evidence at trial is applicable only to co-defendants.
Blankenship, 382 F.3d at 1123 (quoting United States v. Schlei, 122 F.3d 944, 984 (11th Cir.
1997)) (emphasis added). Accordingly, “[p]rejudice should not be found in a joint trial
just because all evidence adduced is not germane to all counts against each defendant or some
evidence adduced is more damaging to one defendant than others.” United States v. Balter, 91
F.3d 427, 433 (3rd Cir. 1996). Federal courts have also noted that “joint trials ‘promoteefficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent
verdicts.”” Balter, 91 F.3d at 432 (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct.
933, 937, 122 L.Ed.2d 317 (1993)).
18. There are several tools a trial court possesses to deal with the potential prejudice
one defendant may encounter as a result of a joint trial that fall short of severance. Even “[w]hen
the risk of prejudice is high, a [trial] court is more likely to determine that separate trials are
necessary, but. . . less drastic measures such as limiting instructions, often will suffice to cure
any risk of prejudice.” United States v. Grey, 173 F.Supp.2d 1, 7 (D.C. Cir. 2001) (quoting
Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). See also
Johnson, 720 So.2d at 236 (affirming the admission of evidence against both co-defendants and
denial of severance where the trial court effectively used a limiting instruction). Another tool a
trial court may use is empaneling two juries to ensure that only the appropriate jury hears
particularly prejudicial evidence. Grey, 173 F.Supp.2d at 7 (referencing use of two juries when
one defendant is facing a death sentence while one or more others is not).
18. A limiting instruction prior to and following the evidence of the 2018 kidnapping
and battery of Nicole Montalvo by Defendant, instructing the jury it may consider that evidence
only against Defendant, is sufficient under the holdings of Johnson and the analysis of the
Florida Supreme Court described in detail in McCray. This Court could use the even more
extreme measure of selecting “dueling juries” in this cause and still avoid a costly and
unnecessary severance.
WHEREFORE, the State asks this Court to enter an order DENYING Defendant’s Motion
to Sever Defendants.
WILLIAM GLADSON
STATE ATTORNEY
FIFTH JUDICIAL CIRCUIT
/s/Matthew Ryan Williams
M. Ryan Williams
Designated Assistant State Attorney
Fifth Judicial Circuit
Florida Bar No. 028645
425 N. Orange Ave.
Box 63
Orlando, FL 32801
rwilliams@sao5.orgCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above has been furnished to Migdalia Perez and
Kim Lasure, counsel for Defendant Christopher Otero-Rivera, and Frank J. Bankowitz, counsel
for co-defendant Angel Rivera, by electronic service this 8th day of March, 2021.
M. Ryan Williams
M. Ryan Williams
Designated Assistant State Attorney
Preview
Filing # 122652987 E-Filed 03/08/2021 10:40:27 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR OSCEOLA COUNTY STATE OF FLORIDA CASE NO.: 49-2019-CF-003738-A-O Plaintiff, Vv. CHRISTOPHER OTERO-RIVERA, Defendants. STATE’S RESPONSE & OBJECTION TO DEFENDANT’S MOTION TO SEVER DEFENDANTS COMES NOW the State of Florida, by and through the undersigned Designated Assistant State Attorney, responding to Defendant’s Motion to Sever Defendants (“Motion”), stating as follows: 1. Defendant was indicted on March 5, 2020 by the Osceola County Grand Jury for the offenses of Second Degree Murder, Abuse of a Human Body, and Tampering with Evidence for the murder of his estranged wife, Nicole Montalvo, and subsequent mutilation of her body in an attempt to conceal he and his co-defendant Angel Rivera’s criminal activity. 2. On April 20, 2020, the State filed its Amended Information in this cause joining Defendant and co-codefendant Angel Rivera pursuant to Florida Rule of Criminal Procedure 3.150.! 3. Co-defendants Christopher Otero-Rivera and Angel Rivera—a son and his father— are both charged with the offenses of Second Degree Murder, Abuse of a Human Body, and Tampering with Physical Evidence. Thus, both co-defendants are “charged with accountability for each charge,” permitting joinder pursuant to Rule 3.150(b)(1). Fla. Rule Crim. P. 3.150(b)(1) (“Two or more defendants may be charged in the same indictment or information on which they are to be tried when . . . each defendant is charged with accountability for each offense charged.”). 4. The State’s evidence will show victim Nicole Montalvo was last seen alive at 4:00 p-m. on Monday, October 21, 2019, immediately before traveling to the property where the co- 1 The State subsequently filed its Second Amended Information consolidating a third co-defendant, Wanda Rivera, with the offenses of Tampering with Physical Evidence, Accessory After the Fact, and False Statements to Law Enforcement. The State dismissed these charges as to Wanda Rivera on March 5, 2021. However, neither the filing nor the dismissal of these charges has any bearing on this Motion since the actions did not affect or alter the charges against co-defendants Christopher Otero-Rivera or Angel Rivera. 1defendants lived. The evidence will show that her remains were located on that property at 3925 Hixon Avenue in St. Cloud, Florida on Thursday afternoon, October 24, 2019 while law enforcement executed a validly issued search warrant. The State will introduce evidence, in the form of GPS records, demonstrating the co-defendants worked in concert to burn and bury Nicole Montalvo’s remains on two separate properties. Jurors in the trial will hear evidence suggesting the co-defendants worked together to remove the victim’s vehicle from their property while also attempting to use her cell phone to confuse or mislead law enforcement as to their commission of the murder. Most importantly in terms of Defendant’s Motion, the jurors will hear that both co- defendants, independent of one another, made statements indicating their desire to murder Nicole Montalvo, and that they worked in concert and conspired to harm Nicole Montalvo to obtain custody of her child, Elijah. Thus, the offenses each co-defendant is charged with constitute the “same connected acts or transactions” and are properly joined pursuant to Rule 3.151(a). Fla. R. Crim. P. 3.151(a) (“For purposes of these rules, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.”). 5. The State having established that both co-defendants and their offenses are properly joined by the plain language of the Florida Rules of Criminal Procedure, Defendant bears the burden of establishing that denial of severance by this Court would be an abuse of discretion. Dove v. State, 287 So.2d 384, 385 (Fla. Ist DCA 1973). Though Defendant’s Motion has three (3) separate sections, Defendant only advances two (2) reasons why this Court should sever the trials of Christopher Otero-Rivera and Angel Rivera in this time of extremely sparse judicial resources. First, Defendant argues that “Bruton Issues Require” severance of his trial from that of Angel Rivera. (Def. Mot. Pg.4) Second, Defendant relies on this Court’s need to “promote a fair determination of the guilt or innocence of 1 or more defendants” under Florida Rule of Criminal Procedure 3.152(b)(1)(B) as grounds for separation. (Def. Mot. Pgs. 5-9) This second ground makes vague references to evidence that will “confuse and mislead the jurors” while also arguing the admission of Williams Rule evidence in this case invokes the “fair determination” provision of the Rule. Both of Defendant’s claims are devoid of any factual or legal support. 6. The State concedes that any attempt to admit an extrajudicial statement of one co- defendant that is incriminating of the other, where that co-defendant did not testify and was not subject to cross-examination, would require severance pursuant to the United States SupremeCourt’s decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The State will not admit any such statements in this trial. Defendant knows that and knew that prior to filing of this Motion. 7. Defendant goes to great lengths in the “Fact” section of his Motion to detail specific quotes from letters Angel Rivera wrote that Defendant c/aims are inculpatory. (Def. Mot. §f] 11.- 12.) Defendant also relies upon the “proffer” Angel Rivera provided to the State on June 20, 2020 in claiming there are Bruton “issues” requiring severance.” (Def. Mot. {| 10.) Interestingly, this reliance comes despite the email the State sent counsel for both co-defendants on February 17, 2021 regarding trial preparations. Attached to this email was the complete list of exhibits the State intends to admit in this trial. This list did not include any letters written by Angel Rivera, nor did it include Angel Rivera’s “proffer.” In the event the State was not clear, the State will not seek to admit any statements of either co-defendant that are inculpatory against the other. 8. The State does intend to admit statements of both co-defendants they provided to law enforcement and accordingly, on November 3, 2021, the State sent counsel for both co- defendants an email identifying the specific redactions it believed necessary for admission of these statements. Again, it is the State’s position that these interviews contain no statements by one inculpating the other. That said, the State has no objection to the Court reviewing this statement for any alleged Bruton issues Defendant believes exists. There are no Bruton issues requiring severance in this cause. 9. Defendant’s second argument is that severance is necessary to ensure a “fair determination of the issues.” (Def. Mot. Pg.5) The first prong of Defendant’s argument appears to be based on his belief that the evidence in this cause will “confuse and mislead” the jurors, though he never says how that will occur. Defendant acknowledges the State is not seeking admission of any inculpatory statements by one co-defendant against the other, yet then makes the following, unsupported, conclusory statement: “[T]he remaining evidence does no more than confuse and mislead the jurors as the State has no direct evidence linking or implicating either one of the defendants in the crime charged.” (Def. Mot. Pg.5) As an initial matter, Defendant’s statement is just wrong. The State will admit direct evidence, in the form of statements both Angel ?“Proffer” is in quotation marks because the term typically indicates a statement given in advance of trial testimony and therefore based in truth. There was very little truth coming from the mouth of Angel Rivera in his June 20, 2020 statement.Rivera and Christopher Otero-Rivera made to witnesses independently, that each man desired to kill Nicole Montalvo. Secondarily, Defendant offers zero explanation as to how any one item of evidence the State intends to admit against either co-defendant will confuse the jury as to the guilt or innocence or the other. That is the relevant issue for purpose of severance—and Defendant is silent on that matter. Defendant is silent on this matter because there is nothing to say. There is no confusion. There is no misleading. 10. Defendant attempts to ground his argument in some law by citing to Menendez v. State, 368 So.2d 1278 (Fla. 1979) where Defendant acknowledges the appellate court affirmed the trial court’s denial of severance. Grasping, Defendant tries to divine some unstated intent of the Florida Supreme Court by stating the ruling “seemed to suggest that if this was a circumstantial case severance would have been mandated.” It is first worth noting the Menendez Court’s statement is clearly dicta since its actual holding was that “[i]t is impossible to conclude on this record that Menendez was prejudiced in the least.” Menendez, 368 So.2d at 1280. Additionally, as was pointed out above, there is direct evidence of the guilt of each co-defendant in this case in the form of their statements of intent. Finally, the Menendez court was operating under standards for circumstantial evidence that no longer exist since the Florida Supreme Court’s decision in Bush v. State, 295 So.3d 179 (Fla. 2020). Even if the State’s case were entirely circumstantial, the State must no longer rebut the reasonable hypothesis of innocence. Bush, 295 So.3d at 200. Rather, the State must merely present evidence upon which a rationale trier of fact can find the elements beyond a reasonable doubt. /d. Defendant’s reliance on Menendez is misplaced and he fails to provide the Court a single instance of confusion requiring severance. 11. The second prong of Defendant’s “fair determination” argument centers around the State’s admission of Williams Rule evidence and, like his “confusion of the issues argument,” is quite hard to follow. As to this second prong, Defendant’s first argument is that the Williams Rule evidence is not relevant. Defendant then adopts Angel Rivera’s argument that the cases should be severed not because of prejudice to Defendant, but to the co-defendant. Defendant then contradicts himself—and this argument—by acknowledging the Williams Rule evidence is inextricably intertwined with the guilt of both co-defendants. None of what Defendant alleges, or attempts to allege, suggests severance is appropriate in this case.12. The relevance and admissibility of the Williams Rule evidence in this cause has already been decided as stated in the late, Honorable Jon Morgan’s Order entered on December 29, 2020. Defendant’s views on admissibility and relevance have already been heard and rejected. 13. Defendant’s second argument that a “fair determination” requires severance is essentially that the admission of Williams Rule evidence against Defendant prejudices his co- defendant to the extent separate trials are required. Defendant directs the Court to Hernandez v. State, 570 So.2d 404 (Fla. 4th DCA 1990) for the proposition that “a motion for severance should be granted if there is evidence directed at a co-defendant which is prejudicial to defendant.” Hernandez, 570 So.2d at 405. The premise of Defendant’s argument is flawed in that the Order admitting the Williams Rule demonstrates some of this evidence is admissible against both Defendant and Angel Rivera, and that the simplistic analysis found in Hernandez and used by the Fourth District Court of Appeal has not been followed by the Florida Supreme Court.? 14. Judge Morgan’s December 29, 2020 Order admitting the Williams Rule evidence in this cause concludes with the following finding: Evidence of the October 3 [2018] attack on Ms. Montalvo, Defendant’s subsequent criminal prosecution, placement on home confinement, being served with a domestic violence injunction and plans to have a cellmate plant drugs in Ms. Montalvo’s car to allow Defendant to obtain custody is all intertwined with the instant charges and necessary to allow the jury to have a full picture of the context within which the events transpired. (Order, P.2) Much, if not most, of this evidence would be admissible against Angel Rivera if a separate trial were granted. This is due to the conspiracy between Christopher Otero-Rivera and Angel Rivera to end the life of Nicole Montalvo. For example, the State intends to introduce evidence that Angel Rivera sat in the gallery during the trial of Christopher Otero-Rivera’s co- defendant, Toni Rocker, for the 2018 kidnapping of Nicole Montalvo because of the cell phone testimony Angel Rivera heard and then used to conceal he and his son’s murder of the victim in this case. Defendant’s status on probation and home confinement would be admissible against Angel Rivera because it is inextricably intertwined with why the murder was committed at the Hixon Avenue residence where Defendant could not leave, as well as why Defendant was wearing the electronic monitor the State will use to show Defendant was involved in the removal of the 3 WestLaw indicates that Hernandez has been cited in three (3) appellate decisions since it was issued in 1990. Each of those decisions is from the Fourth District Court of Appeal. 5victim’s car from the property and the burning and burying of the victim’s remains. Evidence of Defendant’s attempt to plant drugs on the victim will be admissible against Angel Rivera because the evidence will show Angel posted the bond for the relevant cellmate and then met with him and propositioned him to murder Nicole Montalvo. Thus, unlike the facts in Hernandez, it is not accurate to say here, as that court did there, that the evidence admitted “would not be relevant in a trial against” co-defendant Angel Rivera. That said, the State concedes that the excited utterances from Nicole Montalvo admitted in Judge Morgan’s Order would not, alone, be admissible against Angel Rivera. However, that fact alone does not require severance under the proper analysis used by the Florida Supreme Court and the federal courts around this nation. 15. The Florida Supreme Court confronted a severance issue similar to the one in Hernandez in its decision in Johnson v. State, 720 So.2d 232 (Fla. 1998). In Johnson, the trial court denied the defendant’s motion to sever despite admitting evidence against Johnson’s co- defendant that was prejudicial and not otherwise admissible against Johnson. Johnson, 720 So.2d at 236. The Florida Supreme court found no error, noting that “the trial judge ensured that the evidence in this case was presented to the jury in a manner designed to eliminate juror confusion” because “the judge instructed the jury that such testimony could only be considered as evidence of guilt against [the co-defendant] and not [Johnson].” /d. Thus, the Florida Supreme Court has rejected the simplistic analysis the Fourth District Court of Appeals applied in Hernandez and instead adopted an analysis finding that “[a] severance is not necessary when the evidence is ‘presented in such a manner that the jury can distinguish the evidence relating to each defendant’s acts, conduct and statements, and then apply the law intelligently and without confusion to determine the individual’s guilt or innocence.’” Jd. (quoting Coleman v. State, 610 So.2d 1283, 1285 (Fla. 1982). 16. The Florida Supreme Court discussed the principles surrounding severance pursuant to Florida Rule of Criminal Procedure 3.152—the principles relied upon in Johnson and ignored in Hernandez—in its decision in McCray v. State, 416 So.2d 804 (Fla. 1982): The object of the rule is not to provide defendants with an absolute right, upon request, to separate trials when they blame each other for the crime. Rather, the rule is designed to assure a fair determination of each defendant's guilt or innocence. This fair determination may be achieved when all the relevant evidence regarding the criminal offense is presented in such a manner that the jury can distinguish the evidence relating to each defendant's acts, conduct, and statements, and can then apply the lawintelligently and without confusion to determine the individual defendant's guilt or innocence. The rule allows the trial court, in its discretion, to grant severance when the jury could be confused or improperly influenced by evidence which applies to only one of several defendants. McCray, 416 So.2d at 806. The McCray Court went on to discuss “some general rules” that have been established for trial courts charged with determining when severance should, and should not, be granted: [T]he fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. Nor is hostility among defendants, or an attempt by one defendant to escape punishment by throwing the blame on a codefendant, a sufficient reason, by itself, to require severance. If the defendants engage in a swearing match as to who did what, the jury should resolve the conflicts and determine the truth of the matter. Id. (citations omitted). See also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993) (holding that prejudice from joint trials warrants severance when there is a “serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence”). Federal court decisions are in line with the view expressed by the Florida Supreme Court in McCray. 17. The Eleventh Circuit Court of Appeals’ decision in United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004) lays out some key principles surrounding severance when the issue is undue prejudice: In general, the strong presumption is that jurors are able to compartmentalize evidence by respecting limiting instructions specifying the defendants against whom the evidence may be considered. The mere fact that there may be an “enormous disparity in the evidence admissible against [one defendant] compared to the other defendants” is not a sufficient basis for reversal. A defendant does not suffer compelling prejudice, sufficient to mandate a severance, simply because much of the evidence at trial is applicable only to co-defendants. Blankenship, 382 F.3d at 1123 (quoting United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997)) (emphasis added). Accordingly, “[p]rejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant or some evidence adduced is more damaging to one defendant than others.” United States v. Balter, 91 F.3d 427, 433 (3rd Cir. 1996). Federal courts have also noted that “joint trials ‘promoteefficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.”” Balter, 91 F.3d at 432 (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993)). 18. There are several tools a trial court possesses to deal with the potential prejudice one defendant may encounter as a result of a joint trial that fall short of severance. Even “[w]hen the risk of prejudice is high, a [trial] court is more likely to determine that separate trials are necessary, but. . . less drastic measures such as limiting instructions, often will suffice to cure any risk of prejudice.” United States v. Grey, 173 F.Supp.2d 1, 7 (D.C. Cir. 2001) (quoting Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). See also Johnson, 720 So.2d at 236 (affirming the admission of evidence against both co-defendants and denial of severance where the trial court effectively used a limiting instruction). Another tool a trial court may use is empaneling two juries to ensure that only the appropriate jury hears particularly prejudicial evidence. Grey, 173 F.Supp.2d at 7 (referencing use of two juries when one defendant is facing a death sentence while one or more others is not). 18. A limiting instruction prior to and following the evidence of the 2018 kidnapping and battery of Nicole Montalvo by Defendant, instructing the jury it may consider that evidence only against Defendant, is sufficient under the holdings of Johnson and the analysis of the Florida Supreme Court described in detail in McCray. This Court could use the even more extreme measure of selecting “dueling juries” in this cause and still avoid a costly and unnecessary severance. WHEREFORE, the State asks this Court to enter an order DENYING Defendant’s Motion to Sever Defendants. WILLIAM GLADSON STATE ATTORNEY FIFTH JUDICIAL CIRCUIT /s/Matthew Ryan Williams M. Ryan Williams Designated Assistant State Attorney Fifth Judicial Circuit Florida Bar No. 028645 425 N. Orange Ave. Box 63 Orlando, FL 32801 rwilliams@sao5.orgCERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above has been furnished to Migdalia Perez and Kim Lasure, counsel for Defendant Christopher Otero-Rivera, and Frank J. Bankowitz, counsel for co-defendant Angel Rivera, by electronic service this 8th day of March, 2021. M. Ryan Williams M. Ryan Williams Designated Assistant State Attorney