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Filing # 122595858 E-Filed 03/05/2021 02:33:52 PM
IN THE COUNTY COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR,
OSCEOLA COUNTY, FLORIDA
STATE OF FLORIDA, CASE NUMBER: 2019-CF-003738-A-OS
v.
Plaintiff, DIVISION: 301
CHRISTOPHER OTERO-RIVERA,
Defendant.
/
MOTION TO SEVER DEFENDANTS
COMES NOW the Defendant, “Otero-Rivera”, by and through the undersigned attorney,
moves this court to grant this motion and sever the charges from those of his co-defendants
pursuant to Florida Rules of Criminal Procedure 3.152(b)(2)(2021). And as grounds for this
motion the undersigned alleges the following:
FACTS
1. Late October 25, 2019, law enforcement officers from the Osceola County Sheriff's
Office arrested, both Christopher Otero-Rivera (“Otero-Rivera”) and Angel Rivera,
during the investigation of the disappearance and alleged homicide of Nicole
Montalvo.
2. On October 28, 2019, warrants for First Degree Murder were executed on both
Defendants while in custody at the Osceola County jail.
3. On December 3, 2019, “Otero-Rivera” was released “ROR” on the homicide charge.
4. The Office of the State Attorney, 9" Circuit, on December 6, 2019, charged Angel
Rivera by Information with Abuse of a Dead Human Body and Failure to Report
Death.
5. Between December 2019 and March 2020, the Osceola County Sheriff, Russell
Gibson, and the State Attorney for the 9" Circuit, Aramis Ayala, engaged in a public
dispute about the handling and lack of charges by the State Attorney’s Office against
the Defendants. This very public dispute led to the Attorney General, Ashley Moody,
penning a letter of concern to Governor, Ron DeSantis. The Governor subsequently
MOTION TO SEVER
isigned an executive Order re-assigning the case to the Office of the State Attorney 5”
Circuit, Bradley King.!
6. Shortly after the re-assignment, the Office of the State Attorney 9" Circuit publicly
announced that Osceola County Sheriff, Russell Gibson, was misleading the public.
Ms. Ayala stated “[i]t is my understanding that as we stand here today, the sheriff still
does not know who actually killed Nicole Montalvo.”
7. Between March 4 and March 5" of 2020, the Office of State Attorney 5" Circuit,
summoned a Grand Jury and presented a case against Otero-Rivera and Angel Rivera.
The grand jury indicted “Otero-Rivera” for Second Degree Murder, Abuse of a Dead
Human Body, and Tampering with Evidence. Angel Rivera was charged by
indictment with Abuse of a Dead Human Body, Accessory After the Fact, and
Tampering with Evidence.
8. On April 3, 2020, Assistant State Attorney Ryan Williams (“ASA Williams”) filed a
Motion to Consolidate joining Angel Rivera’s case, 2019-CF-3737-A-OS with the
Otero-Rivera’s case, 2019-CF-3738-A-OS. To support the consolidation of both
matters, the State in its written motion averred the following:
“{t]he indictment against the Defendant Otero-Rivera is based
upon the murder of his wife Nicole Montalvo. The charge of
Accessory After the Fact pending against Defendant Angel Rivera
is based upon Rivera’s aiding or assisting his son, Defendant
Otero-Rivera, with Nicole Montalvo’s murder. Proving the crime
of Accessory After the Fact against Angel Rivera requires the State
to prove that Otero-Rivera committed the murder of Nicole
Montalvo, and that Angel Rivera knew he had committed the
murder.”
Most notably, the State argued in its motion, “[t]hus, proving
Angel Rivera’s crime will require the State to prove the murder
committed by Otero-Rivera. ...[C]hristopher Otero-Rivera’s
murder of Nicole Montalvo, and his attempts to cover up that
crime, were aided by Angel Rivera’s actions in attempting to
dispose of Ms. Montalvo’s remains.”?
1 See Orlando Sentinel Article “Osceola Sheriff's letter said Aramis Ayala hindered Nicole Montalvo case. “Blatant
lies,” she says... February 3, 2020.
? See Article “Ayala blast Osceola sheriff on Montalvo killing: ‘My silence ends today’
3 See Motion to Consolidate, filed April 3, 2020 under Osceola County court case # 2019-CF-004126-A-OS.
MOTION TO SEVER9. Subsequently, on April 20, 2020, the State filed an Amended Information joining
both Defendant. In addition, the State alleged that both of the Defendants murdered
Nicole Montalvo, abused her body, and tampered with physical evidence.
10. On June 20, 2020, Angel Rivera gave a proffer to ASA Williams in which he
implicated Co-Defendant Otero-Rivera for the alleged homicide of Nicole Montalvo.
11.In State’s discovery exhibit # 713-715, Co-Defendant Angel Rivera, sent a
handwritten letter to Co-Defendant, Wanda Rivera, making statements that implicate
the Co-Defendant Otero-Rivera. The relevant statements are:
«’..’m hanging in there. If everything turns out right, we are going
away for a nice long weekend. ...I never expected for something
like this to happen. ...the truth will come out and I will be home
soon. ...but don’t be afraid, we have done nothing wrong.”
12. In State’s discovery exhibit # 756-759, Co-Defendant Angel Rivera, sent another
handwritten letter to Co-Defendant, Wanda Rivera, again, making statements that
implicate the Defendant Otero-Rivera. The relevant statements are:
“[fleeling so bad that they arrested you. Also, when they know that
you, Nick, and me didn’t do anything. I’m sure that someone
helped Chris. I just don’t know who would help do such a thing.”
“T need you to be strong for me while I am here and when I come
home I want to preach my testimony and teach the young.”
“T know that Chris will have to take some time. I just hope he
learns something while he is there. He is young and strong”
LAW AND ARGUMENT
A motion for severance of criminal defendants must satisfy the requirements under Fla.
R. Crim. P. 3.152(b) Severance of Defendant.
(1) On a motion of the State or a Defendant, the Court shall order a severance of defendants
and separate trials:
{A)before trial, on a showing that the order is necessary to protect a defendant’s right to
a speedy trial, or is appropriate to promote a fair determination of the guilt or
innocence of | or more defendants; or
MOTION TO SEVER(B) during trial, only with defendant’s consent and on a showing that the order is
necessary to achieve a fair determination of the guilt or innocence of 1 or more
defendants.
(2) If a defendant moves for a severance of defendants on the ground that an oral or written
statement of a codefendant makes reference to him or her but is not admissible against him or
her, the court shall determine whether the state will offer evidence of the statement at the trial.
If the state intends to offer the statement in evidence, the court shall order the state to submit
its evidence of the statement for consideration by the court and counsel for defendants and if
the court determines that the statement is not admissible against the moving defendant, it shall
require the state to elect 1 of the following courses:
(A) a joint trial at which evidence of the statement will not be admitted.
(B) a joint trial at which evidence of the statement will be admitted after all references to
the moving defendant have been deleted, provided the court determines that admission of
the evidence with deletions will not prejudice the moving defendant; or
(C) Severance of the moving defendant.
(3) In cases in which, at the close of the state's case or at the close of all of the evidence, the
evidence is not sufficient to support a finding that allegations on which the joinder of a defendant
is based have been proved, the court shall, on motion of that defendant, grant a severance unless
the court finds that severance is unnecessary to achieve a fair determination of that defendant's
guilt or innocence.
I. Bruton Issues Require the Court to Grant Relief in Favor of Otero-Rivera
In the instance case, severance is appropriate because of the aforementioned Bruton
issues.
The United States Supreme Court has held “[w]here the powerfully incrimination extrajudicial
statements of a co-defendant, who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to
the defendant, but their credibility is inevitably suspect, a fact recognized when accomplices do
take the stand and the jury is instructed to weigh their testimony carefully given the recognized
motivation to shift blame onto others. Bruton v. U.S., 391 U.S. 123, 135-136 (1968).
Severance requested is necessary because oral or written statements of Co-Defendant
MOTION TO SEVER
4Angel Rivera make reference to Otero-Rivera. The Defendant requests the following relief:
(a) That the Court determine whether the State will offer evidence of the said statements
at trial; and
(b) that if the Court determines that the State will offer evidence of the said statements at
trial, then the Court should order the State to submit evidence of the statements for
the Court’s consideration; and
(c) if the Court determines that the statements are not admissible against Otero-Rivera,
then the Court should order the State to elect to conduct a joint trial and refrain from
admitting said evidence, elect a joint trial in which the statements shall only be
admitted with all reference to Otero-Rivera omitted, or to sever Otero-Rivera’s
charges and conduct a separate trial. Fla. Crim. R. Pro. 3.152(b)(2021)
Florida law requires that the State furnish the statements of Co-Defendant Angel Rivera
to the Court, who can then make a determination if relief is required. Due to the totality of the
circumstances, to include the below arguments, the only relief that can ensure Otero-Rivera a fair
trial is to grant a severance of his case. In Otero-Rivera case, the Co-Defendant Angel Rivera,
provided not only a “proffer” to the State of Florida but also implicated the Defendant Otero-
Rivera in the crimes charged in handwritten letters. The State has indicated its intent not to
introduce any portions of the proffer except as impeachment in the event the Co-Defendant
Angel Rivera takes the stand in his own defense. The defense requests the State’s intent be
placed on the record with the above required relief provided by Statute. In addition, the State has
been silent in reference to the letters written by the Co-Defendant Angel Rivera, thus its intent
must be set forth or the defense request this Court abide by Fla. Stat. §3.152(b) (2021) and make
its necessary findings.
Il. A Fair Determination of Innocence or Guilt Mandates Severance
To ensure a fair determination of the guilt or innocence of the defendant the Court should
grant the relief requested. The issues mandating severance notwithstanding Bruton includes the
lack of evidence distinguishing the acts, conduct, and statements of each defendant in the alleged
crime; the anticipation that the defendants will have conflicting defenses; and the fact that the
defendants have varying degrees of prior criminal records. As the Florida Supreme Court
stated in Crum v. State, 398 So. 2d 810 (Fla. 1981) “the fair objective of fairly determining a
MOTION TO SEVERlefendant’s guilt should have priority over other relevant considerations such as expense,
efficiency, and convenience.”
In addressing the prejudicial issues facing the defendant if tried side-by-side of his co-
efendant(s) the most notable concern is “confusion of the issues” which under McCray v. State,
416 So.2d 804, 806 (Fla. 1982) the rule permits 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
defendant.
While the McCray court established general rules for and against severance it also
warned that it is the less obvious prejudicial circumstances that the issue of whether severance
should be granted must be answered on a case-by-case basis. The McCray court held that to
ensure that a defendant achieves a fair determination of his guilt or innocence depends on
whether the evidence regarding the criminal offense is presented in a manner that a jury can
distinguish the evidence relating to each defendants acts, conduct, and statements, and can then
apply the law intelligently and without confusion to determine the individual defendants’ guilt or
innocence. /d. at 806. (emphasis added).
In the Co-Defendant’s case, the State responded to Co-Defendant’s Motion to Sever, and
argued that “while it is possible the Co-Defendant will engage in a swearing match against one
or another or blame Defendant for the murder it would be the jury’s role to determine facts, not
the Court’s through severance.” The defense agrees, however, to engage in a swearing match
would indicate the State intends to admit evidence of a statement, admission, or confession.
Unlike the facts in McCray and its progeny’s there are no admissions, statements, or confessions
in this case. The only statement that implicates the Defendant Otero-Rivera would be the proffer
of the Co-Defendant Angel Rivera. Yet, the State has announced its intent not to seek its
admission. Thus, the remaining evidence does no more than to confise and mislead the jurors as
the State has no direct evidence linking or implicating either one of the defendants in the crimes
charged. Simply put, the State is attempting to gain an unfair advantage by forcing the Defendant
Otero-Rivera and Co-Defendants to a joint trial with nothing more than what the State believes
in its mind.
Finally, in Menendez v. State, 368 So.2d 1278 (Fla. 1979), the facts of the case was
overwhelming against Menendez as opposed to the co-defendant. Counsel for the co-defendant
made two statements, in opening and closing arguments, that the defendant argued was so
MOTION TO SEVERprejudicial that it prevented the jurors from making a fair determination of his guilt or innocence.
The Court concluded that because the evidence was so overwhelming against Menendez and this
was not a case based on solely circumstantial evidence, there was no abuse by the trial judge in
denying a severance. The Mendez Court seemed to suggest that if this was a circumstantial case
severance would have been mandated. (emphasis added).
In the instant case, taking the evidence in the light most favorable to the State, it is clear
that there is no evidence in this case, physical or otherwise notwithstanding mere assumptions,
speculation, and suppositions by the State, the case is based solely on circumstantial evidence.
Thus, under the proposition of Menendez, severance is mandated.
Il. Williams Rule Evidence
The State intends to offer evidence in reference to a prior domestic criminal matter
which involved the Defendant Otero-Rivera and Nicole Montalvo. The purpose is to
establish motive and intent for the crimes charged.
The Co-Defendants were neither alleged to have been involved nor charged with the domestic
crime. The evidence surrounding the domestic case is irrelevant, inadmissible, nor probative of
any fact in issue against the Co-Defendants. The admission of this evidence would be highly
prejudicial to the Co-Defendant if they were being tried with Defendant Otero-Rivera.
Counsel for Co-Defendant Angel Rivera argued in his Motion to Sever, that “evidence of
the history of abuse (Williams Rule evidence) by co-defendant against the victim, is not in any
form relevant against the defendant (Angel Rivera).”4 The State’s response appeared to agree
that the evidence is not relevant to Angel Rivera but minimized its prejudicial effect when he
suggested there would be no harm because his intent is to “only call six (6) witnesses” to testify.
According to ASA Williams this “limited” introduction of witnesses, compounded by a special
jury instruction would be harmless against the Co-Defendant, Angel Rivera. The Defendant
Otero-Rivera strongly disagrees.
The Williams Rule evidence is inextricably intertwined with the States theory of its case.
The State argued in its Williams Rule Motion that the “motive and intent” of the Williams Rule
evidence and the alleged homicide of Nicole Montalvo was centered on the custody of the child,
Elijah Rivera. ASA Williams argued that the circumstances associated with the Williams Rule
evidence was an ongoing criminal conspiracy between the Defendant Otero-Rivera and Co-
4 See Motion to Sever, State v. Angel L. Rivera, 2019CF4126, filed on July 21, 2020.
MOTION TO SEVERDefendant Angel Rivera that subsequently led to the alleged homicide of Nicole Montalvo. The
State argued:
“the murder and dismemberment of Nicole Montalvo, along with
the burial of those body parts on the family property, where they
both reside, is logical and can only be described in the context of
both of his prior abuse of Nicole Montalvo, he and his family’s
desire for custody of their child in common, and his home
confinement and corresponding GPS monitoring at the time of the
murder.”5
While the State argued the Williams rule evidence will be instructional only as it applies
to the Defendant Otero-Rivera, we know based on the State’s own argument that the Williams
tule evidence would be applicable and prejudicial equally to the Co-Defendant Angel Rivera.
The State further argued:
“the Defendant’s (Otero-Rivera) conspiracy with his father and
Co-Defendant, (Angel Rivera), to have Nicole Montalvo arrested,
discredited, and win custody of the child Elijah are directly related
and inseparable from Defendant (Otero-Rivera) anticipating
Nicole’s testimony in the trial for the kidnapping (Williams Rule
evidence). The same is true of Co-Defendant Rivera’s January 21,
2019 offer of money to Dustin Gonzalez to kill Nicole Montalvo or
otherwise make her disappear.”
The State, in its Williams Rule Motion, conceded that to “provide an intelligent account
of the crimes charged, the Williams Rule evidence is necessary against the Defendant Otero-
Rivera.” Thus, the State cannot argue on one hand that the evidence is relevant to show motive
and intent, yet on the other hand, attempt to diminish the impact of the presentation of the
Williams Rule evidence against that of the Co-Defendants in the trial of the alleged homicide of
Nicole Montalvo. The introduction of Williams Rule evidence will add substantial, perhaps even
critical, weight to the State’s case. Therefore, if the State intends on admitting Williams Rule
evidence, the case must be severed. However, if the State seeks a joint trial, this Court should
then preclude the State from introducing Williams Rule evidence finding that the evidence is
irrelevant, inadmissible, and prejudicial against the Co-Defendants and that no special jury
instruction can cure the harm.
In Hernandez v. State, 570 So.2d 405-406 (4% DCA) the court determined that admission
MOTION TO SEVERof evidence of collateral drug crimes committed by the defendant’s brother, when the two
brothers were being tried together for a drug offense required the severance of the two brothers’
trials. The court cited to Cason v. State, 211 So.2d 604 (Fla. 2"? DCA 1968) and held that “a
motion for severance should be granted if there is evidence directed at a co-defendant which is
prejudicial to defendant.” The court weighed the fact that despite the collateral evidence was
directed only at the co-defendant, the defendants were brothers. They resided in the same home
and the fact that defendant had previous dealings in drugs and used drugs certainly could have
been attributed to Hernandez as a possible participant in these acts and may have contributed to
the verdicts of guilty against Hernandez.” The court found that it was significant that the
evidence would not have been admissible in a separate trial of Hernandez even if the
codefendant had testified on the behalf of Hernandez, because the questions with respect to
codefendant’s prior drug dealings would not be relevant in a trial against Hernandez for the
present crimes. /d. at 405. See Fla. Stat. §90.401 and 402, Fla. Stat. (2019).
Conclusion
This motion is made timely, and the granting of this motion will not prejudice the State.
The totality of the circumstances shows that the likelihood of prejudice to Defendant Otero-
Rivera by allowing a joint trial, greatly outweighs the impact of judicial economy.
WHEREFORE, the defendant respectfully prays this Honorable Court grant this Motion
and sever the trial of the Defendant Otero-Rivera from the Co-Defendants or set this matter for
hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been E-
Filed thru E-file Portal System to the Office of the State Attorney, rwilliams@sao5.org and
jmcmanus@sao5.org; and fib@bankowitzlaw.com on this 5" day of March, 2021.
MIGDALIA PEREZ
Florida Bar No.: 696307
MOTION TO SEVER517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
KIMBERLY A. LaSURE, ESQ.,
Florida Bar No.: 883751
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
Klasure(@perezlasurelaw com
MOTION TO SEVER
10
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Filing # 122595858 E-Filed 03/05/2021 02:33:52 PM IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR, OSCEOLA COUNTY, FLORIDA STATE OF FLORIDA, CASE NUMBER: 2019-CF-003738-A-OS v. Plaintiff, DIVISION: 301 CHRISTOPHER OTERO-RIVERA, Defendant. / MOTION TO SEVER DEFENDANTS COMES NOW the Defendant, “Otero-Rivera”, by and through the undersigned attorney, moves this court to grant this motion and sever the charges from those of his co-defendants pursuant to Florida Rules of Criminal Procedure 3.152(b)(2)(2021). And as grounds for this motion the undersigned alleges the following: FACTS 1. Late October 25, 2019, law enforcement officers from the Osceola County Sheriff's Office arrested, both Christopher Otero-Rivera (“Otero-Rivera”) and Angel Rivera, during the investigation of the disappearance and alleged homicide of Nicole Montalvo. 2. On October 28, 2019, warrants for First Degree Murder were executed on both Defendants while in custody at the Osceola County jail. 3. On December 3, 2019, “Otero-Rivera” was released “ROR” on the homicide charge. 4. The Office of the State Attorney, 9" Circuit, on December 6, 2019, charged Angel Rivera by Information with Abuse of a Dead Human Body and Failure to Report Death. 5. Between December 2019 and March 2020, the Osceola County Sheriff, Russell Gibson, and the State Attorney for the 9" Circuit, Aramis Ayala, engaged in a public dispute about the handling and lack of charges by the State Attorney’s Office against the Defendants. This very public dispute led to the Attorney General, Ashley Moody, penning a letter of concern to Governor, Ron DeSantis. The Governor subsequently MOTION TO SEVER isigned an executive Order re-assigning the case to the Office of the State Attorney 5” Circuit, Bradley King.! 6. Shortly after the re-assignment, the Office of the State Attorney 9" Circuit publicly announced that Osceola County Sheriff, Russell Gibson, was misleading the public. Ms. Ayala stated “[i]t is my understanding that as we stand here today, the sheriff still does not know who actually killed Nicole Montalvo.” 7. Between March 4 and March 5" of 2020, the Office of State Attorney 5" Circuit, summoned a Grand Jury and presented a case against Otero-Rivera and Angel Rivera. The grand jury indicted “Otero-Rivera” for Second Degree Murder, Abuse of a Dead Human Body, and Tampering with Evidence. Angel Rivera was charged by indictment with Abuse of a Dead Human Body, Accessory After the Fact, and Tampering with Evidence. 8. On April 3, 2020, Assistant State Attorney Ryan Williams (“ASA Williams”) filed a Motion to Consolidate joining Angel Rivera’s case, 2019-CF-3737-A-OS with the Otero-Rivera’s case, 2019-CF-3738-A-OS. To support the consolidation of both matters, the State in its written motion averred the following: “{t]he indictment against the Defendant Otero-Rivera is based upon the murder of his wife Nicole Montalvo. The charge of Accessory After the Fact pending against Defendant Angel Rivera is based upon Rivera’s aiding or assisting his son, Defendant Otero-Rivera, with Nicole Montalvo’s murder. Proving the crime of Accessory After the Fact against Angel Rivera requires the State to prove that Otero-Rivera committed the murder of Nicole Montalvo, and that Angel Rivera knew he had committed the murder.” Most notably, the State argued in its motion, “[t]hus, proving Angel Rivera’s crime will require the State to prove the murder committed by Otero-Rivera. ...[C]hristopher Otero-Rivera’s murder of Nicole Montalvo, and his attempts to cover up that crime, were aided by Angel Rivera’s actions in attempting to dispose of Ms. Montalvo’s remains.”? 1 See Orlando Sentinel Article “Osceola Sheriff's letter said Aramis Ayala hindered Nicole Montalvo case. “Blatant lies,” she says... February 3, 2020. ? See Article “Ayala blast Osceola sheriff on Montalvo killing: ‘My silence ends today’ 3 See Motion to Consolidate, filed April 3, 2020 under Osceola County court case # 2019-CF-004126-A-OS. MOTION TO SEVER9. Subsequently, on April 20, 2020, the State filed an Amended Information joining both Defendant. In addition, the State alleged that both of the Defendants murdered Nicole Montalvo, abused her body, and tampered with physical evidence. 10. On June 20, 2020, Angel Rivera gave a proffer to ASA Williams in which he implicated Co-Defendant Otero-Rivera for the alleged homicide of Nicole Montalvo. 11.In State’s discovery exhibit # 713-715, Co-Defendant Angel Rivera, sent a handwritten letter to Co-Defendant, Wanda Rivera, making statements that implicate the Co-Defendant Otero-Rivera. The relevant statements are: «’..’m hanging in there. If everything turns out right, we are going away for a nice long weekend. ...I never expected for something like this to happen. ...the truth will come out and I will be home soon. ...but don’t be afraid, we have done nothing wrong.” 12. In State’s discovery exhibit # 756-759, Co-Defendant Angel Rivera, sent another handwritten letter to Co-Defendant, Wanda Rivera, again, making statements that implicate the Defendant Otero-Rivera. The relevant statements are: “[fleeling so bad that they arrested you. Also, when they know that you, Nick, and me didn’t do anything. I’m sure that someone helped Chris. I just don’t know who would help do such a thing.” “T need you to be strong for me while I am here and when I come home I want to preach my testimony and teach the young.” “T know that Chris will have to take some time. I just hope he learns something while he is there. He is young and strong” LAW AND ARGUMENT A motion for severance of criminal defendants must satisfy the requirements under Fla. R. Crim. P. 3.152(b) Severance of Defendant. (1) On a motion of the State or a Defendant, the Court shall order a severance of defendants and separate trials: {A)before trial, on a showing that the order is necessary to protect a defendant’s right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of | or more defendants; or MOTION TO SEVER(B) during trial, only with defendant’s consent and on a showing that the order is necessary to achieve a fair determination of the guilt or innocence of 1 or more defendants. (2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a codefendant makes reference to him or her but is not admissible against him or her, the court shall determine whether the state will offer evidence of the statement at the trial. If the state intends to offer the statement in evidence, the court shall order the state to submit its evidence of the statement for consideration by the court and counsel for defendants and if the court determines that the statement is not admissible against the moving defendant, it shall require the state to elect 1 of the following courses: (A) a joint trial at which evidence of the statement will not be admitted. (B) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of the evidence with deletions will not prejudice the moving defendant; or (C) Severance of the moving defendant. (3) In cases in which, at the close of the state's case or at the close of all of the evidence, the evidence is not sufficient to support a finding that allegations on which the joinder of a defendant is based have been proved, the court shall, on motion of that defendant, grant a severance unless the court finds that severance is unnecessary to achieve a fair determination of that defendant's guilt or innocence. I. Bruton Issues Require the Court to Grant Relief in Favor of Otero-Rivera In the instance case, severance is appropriate because of the aforementioned Bruton issues. The United States Supreme Court has held “[w]here the powerfully incrimination extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant, but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. Bruton v. U.S., 391 U.S. 123, 135-136 (1968). Severance requested is necessary because oral or written statements of Co-Defendant MOTION TO SEVER 4Angel Rivera make reference to Otero-Rivera. The Defendant requests the following relief: (a) That the Court determine whether the State will offer evidence of the said statements at trial; and (b) that if the Court determines that the State will offer evidence of the said statements at trial, then the Court should order the State to submit evidence of the statements for the Court’s consideration; and (c) if the Court determines that the statements are not admissible against Otero-Rivera, then the Court should order the State to elect to conduct a joint trial and refrain from admitting said evidence, elect a joint trial in which the statements shall only be admitted with all reference to Otero-Rivera omitted, or to sever Otero-Rivera’s charges and conduct a separate trial. Fla. Crim. R. Pro. 3.152(b)(2021) Florida law requires that the State furnish the statements of Co-Defendant Angel Rivera to the Court, who can then make a determination if relief is required. Due to the totality of the circumstances, to include the below arguments, the only relief that can ensure Otero-Rivera a fair trial is to grant a severance of his case. In Otero-Rivera case, the Co-Defendant Angel Rivera, provided not only a “proffer” to the State of Florida but also implicated the Defendant Otero- Rivera in the crimes charged in handwritten letters. The State has indicated its intent not to introduce any portions of the proffer except as impeachment in the event the Co-Defendant Angel Rivera takes the stand in his own defense. The defense requests the State’s intent be placed on the record with the above required relief provided by Statute. In addition, the State has been silent in reference to the letters written by the Co-Defendant Angel Rivera, thus its intent must be set forth or the defense request this Court abide by Fla. Stat. §3.152(b) (2021) and make its necessary findings. Il. A Fair Determination of Innocence or Guilt Mandates Severance To ensure a fair determination of the guilt or innocence of the defendant the Court should grant the relief requested. The issues mandating severance notwithstanding Bruton includes the lack of evidence distinguishing the acts, conduct, and statements of each defendant in the alleged crime; the anticipation that the defendants will have conflicting defenses; and the fact that the defendants have varying degrees of prior criminal records. As the Florida Supreme Court stated in Crum v. State, 398 So. 2d 810 (Fla. 1981) “the fair objective of fairly determining a MOTION TO SEVERlefendant’s guilt should have priority over other relevant considerations such as expense, efficiency, and convenience.” In addressing the prejudicial issues facing the defendant if tried side-by-side of his co- efendant(s) the most notable concern is “confusion of the issues” which under McCray v. State, 416 So.2d 804, 806 (Fla. 1982) the rule permits 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 defendant. While the McCray court established general rules for and against severance it also warned that it is the less obvious prejudicial circumstances that the issue of whether severance should be granted must be answered on a case-by-case basis. The McCray court held that to ensure that a defendant achieves a fair determination of his guilt or innocence depends on whether the evidence regarding the criminal offense is presented in a manner that a jury can distinguish the evidence relating to each defendants acts, conduct, and statements, and can then apply the law intelligently and without confusion to determine the individual defendants’ guilt or innocence. /d. at 806. (emphasis added). In the Co-Defendant’s case, the State responded to Co-Defendant’s Motion to Sever, and argued that “while it is possible the Co-Defendant will engage in a swearing match against one or another or blame Defendant for the murder it would be the jury’s role to determine facts, not the Court’s through severance.” The defense agrees, however, to engage in a swearing match would indicate the State intends to admit evidence of a statement, admission, or confession. Unlike the facts in McCray and its progeny’s there are no admissions, statements, or confessions in this case. The only statement that implicates the Defendant Otero-Rivera would be the proffer of the Co-Defendant Angel Rivera. Yet, the State has announced its intent not to seek its admission. Thus, the remaining evidence does no more than to confise and mislead the jurors as the State has no direct evidence linking or implicating either one of the defendants in the crimes charged. Simply put, the State is attempting to gain an unfair advantage by forcing the Defendant Otero-Rivera and Co-Defendants to a joint trial with nothing more than what the State believes in its mind. Finally, in Menendez v. State, 368 So.2d 1278 (Fla. 1979), the facts of the case was overwhelming against Menendez as opposed to the co-defendant. Counsel for the co-defendant made two statements, in opening and closing arguments, that the defendant argued was so MOTION TO SEVERprejudicial that it prevented the jurors from making a fair determination of his guilt or innocence. The Court concluded that because the evidence was so overwhelming against Menendez and this was not a case based on solely circumstantial evidence, there was no abuse by the trial judge in denying a severance. The Mendez Court seemed to suggest that if this was a circumstantial case severance would have been mandated. (emphasis added). In the instant case, taking the evidence in the light most favorable to the State, it is clear that there is no evidence in this case, physical or otherwise notwithstanding mere assumptions, speculation, and suppositions by the State, the case is based solely on circumstantial evidence. Thus, under the proposition of Menendez, severance is mandated. Il. Williams Rule Evidence The State intends to offer evidence in reference to a prior domestic criminal matter which involved the Defendant Otero-Rivera and Nicole Montalvo. The purpose is to establish motive and intent for the crimes charged. The Co-Defendants were neither alleged to have been involved nor charged with the domestic crime. The evidence surrounding the domestic case is irrelevant, inadmissible, nor probative of any fact in issue against the Co-Defendants. The admission of this evidence would be highly prejudicial to the Co-Defendant if they were being tried with Defendant Otero-Rivera. Counsel for Co-Defendant Angel Rivera argued in his Motion to Sever, that “evidence of the history of abuse (Williams Rule evidence) by co-defendant against the victim, is not in any form relevant against the defendant (Angel Rivera).”4 The State’s response appeared to agree that the evidence is not relevant to Angel Rivera but minimized its prejudicial effect when he suggested there would be no harm because his intent is to “only call six (6) witnesses” to testify. According to ASA Williams this “limited” introduction of witnesses, compounded by a special jury instruction would be harmless against the Co-Defendant, Angel Rivera. The Defendant Otero-Rivera strongly disagrees. The Williams Rule evidence is inextricably intertwined with the States theory of its case. The State argued in its Williams Rule Motion that the “motive and intent” of the Williams Rule evidence and the alleged homicide of Nicole Montalvo was centered on the custody of the child, Elijah Rivera. ASA Williams argued that the circumstances associated with the Williams Rule evidence was an ongoing criminal conspiracy between the Defendant Otero-Rivera and Co- 4 See Motion to Sever, State v. Angel L. Rivera, 2019CF4126, filed on July 21, 2020. MOTION TO SEVERDefendant Angel Rivera that subsequently led to the alleged homicide of Nicole Montalvo. The State argued: “the murder and dismemberment of Nicole Montalvo, along with the burial of those body parts on the family property, where they both reside, is logical and can only be described in the context of both of his prior abuse of Nicole Montalvo, he and his family’s desire for custody of their child in common, and his home confinement and corresponding GPS monitoring at the time of the murder.”5 While the State argued the Williams rule evidence will be instructional only as it applies to the Defendant Otero-Rivera, we know based on the State’s own argument that the Williams tule evidence would be applicable and prejudicial equally to the Co-Defendant Angel Rivera. The State further argued: “the Defendant’s (Otero-Rivera) conspiracy with his father and Co-Defendant, (Angel Rivera), to have Nicole Montalvo arrested, discredited, and win custody of the child Elijah are directly related and inseparable from Defendant (Otero-Rivera) anticipating Nicole’s testimony in the trial for the kidnapping (Williams Rule evidence). The same is true of Co-Defendant Rivera’s January 21, 2019 offer of money to Dustin Gonzalez to kill Nicole Montalvo or otherwise make her disappear.” The State, in its Williams Rule Motion, conceded that to “provide an intelligent account of the crimes charged, the Williams Rule evidence is necessary against the Defendant Otero- Rivera.” Thus, the State cannot argue on one hand that the evidence is relevant to show motive and intent, yet on the other hand, attempt to diminish the impact of the presentation of the Williams Rule evidence against that of the Co-Defendants in the trial of the alleged homicide of Nicole Montalvo. The introduction of Williams Rule evidence will add substantial, perhaps even critical, weight to the State’s case. Therefore, if the State intends on admitting Williams Rule evidence, the case must be severed. However, if the State seeks a joint trial, this Court should then preclude the State from introducing Williams Rule evidence finding that the evidence is irrelevant, inadmissible, and prejudicial against the Co-Defendants and that no special jury instruction can cure the harm. In Hernandez v. State, 570 So.2d 405-406 (4% DCA) the court determined that admission MOTION TO SEVERof evidence of collateral drug crimes committed by the defendant’s brother, when the two brothers were being tried together for a drug offense required the severance of the two brothers’ trials. The court cited to Cason v. State, 211 So.2d 604 (Fla. 2"? DCA 1968) and held that “a motion for severance should be granted if there is evidence directed at a co-defendant which is prejudicial to defendant.” The court weighed the fact that despite the collateral evidence was directed only at the co-defendant, the defendants were brothers. They resided in the same home and the fact that defendant had previous dealings in drugs and used drugs certainly could have been attributed to Hernandez as a possible participant in these acts and may have contributed to the verdicts of guilty against Hernandez.” The court found that it was significant that the evidence would not have been admissible in a separate trial of Hernandez even if the codefendant had testified on the behalf of Hernandez, because the questions with respect to codefendant’s prior drug dealings would not be relevant in a trial against Hernandez for the present crimes. /d. at 405. See Fla. Stat. §90.401 and 402, Fla. Stat. (2019). Conclusion This motion is made timely, and the granting of this motion will not prejudice the State. The totality of the circumstances shows that the likelihood of prejudice to Defendant Otero- Rivera by allowing a joint trial, greatly outweighs the impact of judicial economy. WHEREFORE, the defendant respectfully prays this Honorable Court grant this Motion and sever the trial of the Defendant Otero-Rivera from the Co-Defendants or set this matter for hearing. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been E- Filed thru E-file Portal System to the Office of the State Attorney, rwilliams@sao5.org and jmcmanus@sao5.org; and fib@bankowitzlaw.com on this 5" day of March, 2021. MIGDALIA PEREZ Florida Bar No.: 696307 MOTION TO SEVER517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 KIMBERLY A. LaSURE, ESQ., Florida Bar No.: 883751 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 Klasure(@perezlasurelaw com MOTION TO SEVER 10