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Filing # 111204450 E-Filed 08/03/2020 06:03:30 PM
1 IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
2 FOR OSCEOLA COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION
3
4
5 STATE OF FLORIDA,
6 Plaintiff,
vs. CASE NOS.: 49-2019-CF-3738-0S
7 49-2019-CF-4126-0S
CHRISTOPHER J. OTERO-RIVERA,
8 ANGEL LUIS RIVERA, DIVISION NO.: 101
9 Defendants.
/
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MOTION HEARINGS
13
BEFORE
14
THE HONORABLE JON B. MORGAN
15
16
17 In the Osceola County Courthouse
2 Courthouse Square
18 Courtroom 5-F
Kissimmee, Florida 34741
19 June 17, 2020
Stenographically reported
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APPEARANCES:
M. RYAN WILLIAMS, ESQUI
JAMIE A. McMANUS, ESQUI.
RE
RE
Designated Assistant State Attorneys
Fifth Judicial Circuit
425 North Orange Avenue
Box 63
Orlando, Florida 32801
On behalf of the State of Florida
MIGDALIA PEREZ, ESQUIRE
KIMBERLY ANN LaSURE, ESQUIRE
Perez LaSure Law, LLC
517 Bryan Street
Kissimmee, Florida 3474
On behalf of the Defendant Christopher Otero-Rivera
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FRANK J. BANKOWITZ, ESQUIRE
Frank J. Bankowitz, P.A.
215 East Livingston Str
Orlando, Florida 32801
On behalf of the Defendant Angel Luis Rivera
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INDEX OF PROCEEDINGS
June 17, 2020
MOTIONS FOR COURT TO TAKE JUDICIAL NOTICE
STATE'S MOTION FOR ADOPTIVE ADMISSION
STATE'S WILLIAMS RULE MOTION
TESTIMONY OF ELAINE MONTALVO
Direct Examination By Mr. Williams
Cross-Examination Ms. Perez
TESTIMONY OF LUCAS CASTILLO
Direct Examination By Ms. McManus
Cross-Examination By Ms. Perez
Redirect Examination By Ms. McManus
TESTIMONY OF ASHLEY FERRELL
Direct Examination By Mr. Williams
Cross-Examination By Ms. Perez
TESTIMONY OF CHRISTINA MONTALVO
Direct Examination By Mr. Williams
Cross-Examination By Ms. Perez
TESTIMONY OF ROBERT HANSELL, UR.,
Direct Examination By Mr. Williams
Cross-Examination By Ms. Perez
TESTIMONY OF GABRIEL DAVILA
Direct Examination By Mr. Williams
Cross-Examination By Ms. Perez
TESTIMONY OF DUSTIN GONZALEZ
Direct Examination By Mr. Williams
Cross-Examination By Ms. Perez
Redirect Examination By Mr. Williams
ARGUMENT
By Mr. Williams
By Ms. LaSure
CERTIFICATE OF REPORTER
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110
113
128
130
146
154
173
180
185
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FOR THE STATE:
Number
Number
Number
Number
Number
Number
Number
YOAUBWNHHE
Number 8
Number 9
Number 10
Number 11
Number 12
Number 13
Number 14
Number 15
Number 16
Number 17
Number 18
EXHIBITS
CD - 911 Call
Composite - 5 Photographs
Composite - Medical Records
Composite - Certified Records
CAD Report
Petition for Injunction
Injunction Hearing Transcript -
10/16/18
Certified Copy - Final Judgment
Injunction
Composite - 5 Photographs
CD - 911 Call
Composite - 2 Photographs
Composite - 4 Photographs
CD - Interview of Christopher
Otero-Rivera
T-Mobile Records
Report by Detective Davila
Certified Copy - Bond Paperwork
CD - Jail Calls
Transcript of Plea Hearing -
7/19/19
FOR THE DEFENSE:
Number 1
Number 2
Statement of Nicole Montalvo -
10/4/2018
Transcript of Toni Rocker Trial
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52
53
70
82
89
91
106
109
123
128
140
144
144
162
183
184
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PROCEEDINGS
(June 17, 2020; 10:04 a.m.)
THE COURT: Okay. So ... and I think we're --
unless you-all have something else, I think we have
everything except for the Otero-Rivera and Rivera
cases, which -- okay. So we'll take a five-minute
recess and come back in and address the -- those
cases.
(Recess from 10:09 a.m. to 10:12 a.m.)
THE COURT: Okay. And we'll go on record in
Cases 19-CF-3738, State versus Christopher
Otero-Rivera, and 19-CF-4126, State versus Angel
Rivera. We're here on a couple of motions this
morning.
MS. PEREZ: Good morning, Your Honor.
THE COURT: Good morning. The first thing I've
got is the State's request to take judicial notice.
assume that's noncontroversial?
MS. PEREZ: No. We've gone over what we have
stipulated to as far as judicial notice, and the
defense also has two exhibits for the Court to take
judicial notice. The State's not objecting as well.
THE COURT: Okay. So as to the State's request
to take judicial notice, which was filed and listing
the three affidavits for the search warrants, the
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defense has no objection; is that correct?
MS. PEREZ: Oh, that's for the other motion that
we're not dealing with, but no, we don't object to
that, Your Honor.
THE COURT: Okay. And the Court will take
judicial notice of the documents requested in the
State's notice then.
I have -- I have two hearings, then, or two
motions set for hearing today I believe: The State's
motion to admit adoptive admissions and the State's
notice of intent to introduce evidence of other
crimes.
Is that --
MS. PEREZ: That's correct.
MR. WILLIAMS: That's correct, Your Honor. Ryan
Williams and Jamie McManus for the State of Florida.
Good morning.
THE COURT: And I've reviewed the motions, and
I've reviewed the cases cited within the motions.
So, State, Mr. Williams, you may proceed with --
MR. WILLIAMS: Yes, Your Honor. As to the motion
for adoptive admission, I would like to take that one
first because some of the witnesses referenced in the
Williams Rule motion sort of depend upon the Court's
admitting those admissions. I don't know that I have
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a whole lot to add to what's in my written motion. If
Your Honor has specific questions about either the
case law or the witness, of the argument, I'm happy to
address them. But the simple version is that our
position is --
MS. PEREZ: If -- if -- if I may, Your Honor? I
mean, if I may? Sorry. Migdalia Perez on behalf of
Christopher Otero-Rivera.
The State is going to call witnesses. I'm going
to ask that we invoke the rule, number one. Number
two, the defense is not objecting to the Montalvo
family remaining in the courtroom, and we can proceed
from there.
THE COURT: Okay. We'll note that Mr. Angel
Rivera is now present in the courtroom, as well as
Christopher Otero-Rivera.
Okay. So --
MR. WILLIAMS: I think where we were is I had
told Your Honor that if you had specific questions
about --
THE COURT: So the State's seeking to admit
the -- essentially the petition --
MR. WILLIAMS: The petition filed by --
THE COURT: -- for injunction?
MR. WILLIAMS: -- Nicole Montalvo. Yes,
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Your Honor.
THE COURT: And the statement -- factual basis
statement by assistant state attorney Moffitt.
MR. WILLIAMS: That's correct. They both -- it's
the State's view and position that both of those
statements fall under the exception under 18(b) --
90.803(18) (b). Thank you.
THE COURT: Defense?
MS. PEREZ: Judge, under the State's request to
admit adoptive admissions, the State cited to a number
of different cases. Our position is the cases that
the State cited to, Globe v. State, Nelson v. State,
and Privett v. State, I believe that those cases are
cases that are distinguishable from the facts in this
particular case. In Globe, Nelson, and Privett, those
were statements made by either a codefendant or a
witness that was a witness to a criminal case and
statements being made by the codefendant in reference
to the actions -- the criminal actions of a defendant
that completely remain silent. In those particular
cases, the courts allowed it as a silence --
acquiescing to silence.
In this particular case, what the State is trying
to do is say at -- for example, one of the things he
wants to bring in is the plea -- the plea where ASA
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Moffitt laid out -- laid out a factual basis for
purposes of the plea.
Number one, the defendant Otero-Rivera did not
take a plea to kidnapping. He did not accept the plea
to robbery. This was a negotiated plea between the
State and the defense. This is a bargain and exchange
for, and I don't believe that the adoptive admission,
that was the intent of that rule for purposes of a
plea.
In that case when ASA Moffitt laid out the
factual basis in order for Judge Wooten to accept the
plea, number one, I believe ASA Moffitt didn't even
lay out a record for a kidnapping. He sort of laid
out a record in order for us to accept the plea. And
so I think the circumstances are different.
In Privett, it lays out a number of factors that
the Court should consider if you're going to allow an
adoptive admission. But the most important thing out
of those factors that they laid out was that the Court
has to consider the circumstances in which these
statements are being made.
I think that it would be a -- a chill to
the Court to say if you take a plea, those statements
could be used against you as an adoptive admission. I
think it would halt the complete criminal system,
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because this is the way we operate. But most
importantly, I think it's operating in bad faith on
the part of the State because this was a bargain and
exchange for. This was not a situation where the
defendant would actually stand there and -- oh, I'm
sorry.
THE COURT: Slow down. You're gonna --
MS. PEREZ: I know. Sorry about that.
This is not a situation where the defendant,
which is one of those factors, if someone is making
these statements, it would be a situation where if you
are completely innocent, you would object to what's
being said or you would say, hold on, that's not me.
When you're taking a plea, that's not what's
happening. We have already negotiated between the
State and the defense. We have come to a conclusion
how we're going to resolve this case.
The State cited to the transcript where it goes
over the plea form and it says that when they laid out
a factual basis, it was only for purposes of the plea.
The State failed to identify for purposes of a plea.
Otherwise, it's not an admission made by the
defendant. And, quite frankly, I think what would be
happening at this point is that if in the case of a
plea where this could come back and haunt the
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defendant, like in the sense where the State is trying
to use it now, I think what I'm looking at is
potentially the defendant saying, I'm gonna withdraw
my plea. My attorney was ineffective because I was
not put on notice that this could come in as an
adoptive admission.
But besides that, I just think that the case law
on the Privett, Globe, and Nelson clearly make out
these factors that the State can't make out as far as
the circumstances under -- when these -- the
circumstances in -- when these admissions are being
made where the defendant is remaining silent. It's
very different when you're dealing with a plea as
opposed to someone talking about some criminal action
and you're staying quiet, which happened in Privett
Nelson, and Globe.
And so I think the State is using the adoptive
admission improperly, and I don't think that was the
intent of the rule. And so I would object to that
admission.
Number two, the State wants to also bring in
the -- his admission or silence at the injunction
hearing. I think that stands for the same thing.
Other than to add to that is that Mr. Otero is brought
into a courtroom for a civil injunction. On page 9 of
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the injunction, Judge Calderon essentially warns or
advises the defendant that this injunction hearing may
be related to a criminal case and anything you say can
be used against you. At that point, Mr. Otero is not
even represented by counsel. But I think the judge is
making that extra effort to say, hey, if you say
anything, this is gonna be held against you.
The State is now saying because he didn't say
anything, that's an adoptive admission.
Number two, Nicole Montalvo had an opportunity to
testify at that hearing. She was represented by
counsel, but she also wasn't even subject to
cross-examination. And so I just think again, when
you look at the factors under adoptive admissions, the
most important note is the Court to consider the
circumstances in which these statements were being
made. And I think under both, they're both in a
courtroom; one is a plea, a bargain and exchange for,
and one is where a court has advised my client, you
don't have counsel -- I wasn't representing him at
that time -- you might wanna be careful what you say,
and he elects not to testify.
So I just think that the State is using the
adoptive admission in contrast to what it was
essentially made for, which is not what we're looking
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at in these two circumstances.
And so the defense would object to the State --
THE COURT: Well, what you're saying is that a
reasonable person would not feel compelled to
contest --
MS. PEREZ: Correct.
THE COURT: -- or object to the statements made?
MS. PEREZ: So if I can lay -- if I can read
these -- the factors that the courts say the Court
should look at is: The statement must have been heard
by the party claimed to have acquiesced. Clearly, the
defendant's in the courtroom during both instances.
The statement must have been understood by the
defendant. Clearly he understands.
The subject matter of the statement is within the
knowledge of the defendant. He's there for a plea.
He's there for an injunction hearing.
No physical, emotional impediments are number
four.
This is what's interesting. Number five, the
personal makeup of the speaker or his relationship to
the party or events are not such as to make an
unreasonable -- make it unreasonable to expect a
denial. At the -- at the plea hearing, he's standing
there expecting to accept the plea, which was
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negotiated between his attorney, myself, and the
State. The State agreed to drop kidnapping, drop the
robbery, which is what we do most of the time, and
this is how the court system operates.
I just think that would be in bad faith, almost a
breach of contract. I tell the defendant the State is
offering you this, and in -- in lieu of resolving this
case, he says, okay. And it's very clear in the
transcript that we agreed to a factual basis for
purposes of the plea and nothing more. If we were not
there, if we had not accepted the plea, we would just
be going forward to trial.
And so I think that's taking it out of context,
saying that under the adoptive admission, you can use
that. And again, in Privett, what's most important
was that the court to determine the person -- whether
the person's silence does constitute an admission, the
circumstance, and the nature of the statement.
The circumstance is he's taking a plea. He
entered into a contract with the State. Your Honor's
very familiar with that. And the same thing at the
injunction. He was warned or advised by
Judge Calderon, you don't have counsel, but if you say
anything, this may be related to your criminal case.
And he -- he decided to not object or fight the
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injunction because he wasn't represented.
So whatever Ms. Montalvo testified to, she
testified to. It's a civil matter, and she was able
to procure her injunction. But that doesn't mean that
he agreed with her statement. He remained silent. He
didn't have counsel. He was under the advice of
the Court that what he could -- what he says can be
held against him, and he had no counsel to assist him
at that hearing.
And so, therefore, I just think that the adoptive
admission wasn't meant for purposes of a plea or at an
injunction hearing where someone's not even
represented by counsel.
THE COURT: Anything further, Mr. Williams?
MR. WILLIAMS: Yes, Your Honor. So defense
counsel's objections to the State using these
admissions by Mr. Christopher Otero-Rivera are that
that's not what the rule meant. I don't think the
rule encompassed originally using a defendant's
statements or motions in a motion to dismiss either,
but the courts of this state in Palmore, which is
cited in the State's motion, said that if a defendant
acknowledges certain statements by a victim in a sworn
motion to dismiss, that's an adoptive admission.
I cited Palmore for the obvious reason, that
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there are some pretty clear parallels that occurred in
that court proceeding -- I'm sorry. Go ahead,
Your Honor.
THE COURT: As to the plea in Case 18-CF-3532, is
it relevant that he's pleaing to three counts and some
of the factual bases to -- as to matters that he's not
pleaing to -- so, I mean, would a reasonable person
jump up and say, no, he's wrong about that?
MR. WILLIAMS: I understand Your Honor's point,
and I would say actually that would give him more
reason to object to the factual basis because the
factual basis laid out by Mr. Moffitt pretty clearly
encompasses acts that would constitute a kidnapping.
And, in fact, the Court, if you read the transcript,
I'm sure you did, asked if there was an objection to
the factual basis.
THE COURT: Right. I saw that, and Ms. Perez
didn't object to it but -- for the --
MR. WILLIAMS: Correct --
THE COURT: -- purposes of a plea --
MS. PEREZ: Right.
THE COURT: -- anything said as to Counts 1 and 2
is kind of superfluous. The State is -- as part of
the agreement is nol-prosing those counts. And so the
relevant portion of the factual basis, it seems, would
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be as to Counts 4, 5, and 6, the tampering with the
witness, unlawful possession of stolen credit or debit
cards, and the battery.
MR. WILLIAMS: Well, Your Honor referenced the
reasonable person. The State would posit that a
reasonable person hearing he's been accused of doing
these things, knowing, according to defense counsel,
that he's not entering a plea to them and heard them,
if they were wrong, would speak up at that point and
say, no, that didn't happen.
Because the legal effect of the statement is
really not a fact- -- not really, it's not a factor --
THE COURT: Right.
MR. WILLIAMS: -- under the calculus that's been
adopted for adoptive admissions. Legal effect is a
non sequitur. What matters is what he said and what
he knew at the time and whether or not a reasonable
person would have denied those.
So while I can see the point that he wasn't
charged with kidnapping, and at no point does the
State intend to reference kidnapping in front of the
jury because he didn't plea to that --
THE COURT: Right.
MR. WILLIAMS: -- what -- what was said in his
presence and that he did not deny, we believe, is
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relevant and an adoptive admission under 90.803(18) as
to the kidnapping.
As to the statement in Ms. Montalvo's petition,
I -- I take the point that the Court warned
Mr. Montalvo [sic] about speaking, but that came after
he acknowledged that he had read the petition and that
did not object or want to hear it.
So I would feel differently and I probably
wouldn't have filed this motion if he had been warned
because I think a reasonable person would stand silent
in those circumstances. But that warning came after
Mr. Montalvo agreed that he had read what was in it
and was not seeking any factual basis or hearing on
it.
THE COURT: And, Ms. Perez, as to the injunction
hearing --
MS. PEREZ: Yes.
THE COURT: -- it's -- wouldn't a reasonable
person say those allegations are not true if --
particularly where he's facing the possibility of
significant restrictions on his freedom of moment --
movement, his ability to possess firearms, and so
forth, ability to see his son if the Court accepts the
contents of the petition as true? So it seems like a
reasonable person would have reason to say, no, that's
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not true.
MS. PEREZ: Well, I think the difference is that
the warning came immediately. If you look at the
transcript, on -- I'm sorry, not the warning. He
asked him had he read the petition. Reading the
petition is just reading the petition.
Following that reading the petition is a
question -- or a statement by Judge Calderon that
says: Mr. Otero, I'm not sure if your criminal case
directly falls on point with regards to these
allegations that are made in the petition. However,
it is a related case, and I just want to advise you
that if you wanna testify today, you may do so, but by
doing that, you'd be waiving your right not to
incriminate yourself and any testimony that you could
be -- that could be used against you in a criminal
procedure.
Again, the circumstances surrounding him is he is
already being held in custody on a criminal case. Now
he's in front of Judge Calderon on a civil case. And
Judge Calderon is saying, hey, let me warn you,
though. This could be related, and I believe it is
related, and I think a reasonable person, after going
through IAs, having a public defender appoint him
saying, hey, do not make any statements in a court of
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law without any representation -- he had a public
defender but not at the civil injunction hearing.
So, no, I don't think that he is in a situation
as your average, reasonable person because he is being
held in custody on a criminal case that the judge,
right there that morning, is saying, let me warn you,
this is -- this could be related, and I believe it is
related to the criminal case.
So it's not reasonable for him to say, oh, by the
way, you're wrong. He has elected not to do that
because he doesn't have representation, and he's been
warned.
THE COURT: And the warning comes in a little bit
further. But --
MS. PEREZ: It comes in on page 4.
THE COURT: All right.
MS. PEREZ: Right.
THE COURT: I understand the argument, anyway.
Okay. Anything further from either side?
MS. PEREZ: If I may? I believe one of the
points the State wants to -- and I don't know if we're
going to address this now. What he would like to do
is play the audio of the hearing, which I didn't know
if you want to address that.
THE COURT: Audio of which hearing?
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MS. PEREZ: Of the injunction hearing.
So what we have is a transcript of the injunction
hearing, and if this is about adoptive admissions, I'm
not sure what's the point in bringing the audio.
Because I think what happens is now it becomes if
Your Honor believes that it's --
THE COURT: Right.
MS. PEREZ: -- admissible, it becomes more
prejudicial than probative, almost brings Ms. Montalvo
to life, which I think then invokes the sympathy of
the jurors. I think that would be improper.
So if Your Honor is going to say this is an
adoptive admission, I would ask the Court to limit it
only to transcript as opposed to actually playing the
live audio.
THE COURT: All right. I understand --
MS. PEREZ: Thank you.
THE COURT: -- your argument.
Okay. What says -- both of these are at least
unique to -- to me. I don't see any cases directly on
point, although there are cases that are informative.
And the question boils down to, as both sides can
see, whether a reasonable person in the defendant's
position would have objected or expressed disagreement
with the statement proffered by -- or made by
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Mr. Moffitt, the assistant state attorney, as to a
factual basis during the plea colloquy in
Case 18-CF-3532.
MS. PEREZ: Judge, if I can just add one -- one
point? I don't think I made it.
Just for purposes of a plea, I think when a --
when an attorney's representing a client and we're
going through these plea negotiations, the attorney is
actually speaking on behalf of the defendant. And I
believe that when we go -- when we take a plea, the
defendant --
THE COURT: You're speaking on behalf of the
defendant. You -- you adopted the statement because
you said you agreed to it.
MS. PEREZ: Well, I adopted -- I adopted the
statement as -- for purposes of the plea, and that's
clear. It was a fact- -- I accept the factual basis
for purposes of the plea, and that's the limitation
right there. And the defendant, as a reasonable
person, would just follow the lead of his attorney.
So he's not a reasonable person for purposes of that
adoptive admission because as the attorney, I'm
speaking on behalf of my client. So that's the finer
point I wanted to make.
THE COURT: I think that kind of cuts both ways,
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but okay.
And then the question is further whether a
reasonable person who is a respondent in a domestic
violence injunction case, while he has a pending
criminal case arising out of the circumstances that
gave the -- referred to in the petition, would voice
objection to the petition or state that he disagrees
with the contents of the petition.
And, Mr. Williams, it doesn't seem that
Mr. Otero-Rivera, in the injunction proceeding, ever
specifically said that he agreed or disagreed with the
contents of the petition. He says -- I guess
impliedly he may -- or you may take it as an implied
agreement with the petition, his decision not to go
forward with the hearing.
MR. WILLIAMS: I would agree that
Mr. Otero-Rivera does not expressly adopt what
Ms. Montalvo writes in her petition. What I would
point out is that the petition is a shell with
virtually nothing on it except for the two pages where
she hand writes what happened that night. But I
agree -- it should be in front of Your Honor, but if
not, we have it marked as an exhibit.
THE COURT: Well, I've got the petition -- or the
transcript here that you attached to --
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MR. WILLIAMS: And I would -- I would concede
that point more readily if there were a bunch of other
writings, legalistic or otherwise, within the
petition. But the whole substance of the petition and
the basis upon which it's going to be granted is what
Ms. Montalvo alleges happened on the night of
October 3rd and October 4.
And he is specifically asked if he wants a
hearing --
THE COURT: Right.
MR. WILLIAMS: -- and to call testimony.
And the other thing I -- I thought was
interesting about defense counsel's testimony is she
injected a reasonable person as to their knowledge of
legal proceeding. Mr. Otero-Rivera, this was not his
first legal proceeding, which I think is relevant at
this injunction because -- and I can prove this up if
necessary, he has prior attempts at injunctions and
prior interactions with the court system.
But I -- I understand the Court's point that he
never expressly says he agrees with Nicole Montalvo's
allegations in her petition.
THE COURT: Judge Calderon said -- was asked:
All right. Did you have an opportunity to review that
petition, which would include the written statement by
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Ms. Montalvo.
The defendant answers: Yes.
And do you want to go forward with the hearing
regard -- with regards to that petition? So if you
wanna have a hearing, you can. We'll take testimony,
and I'll make a decision with regards to it. Or you
can waive the right to that hearing, and the Court can
make a decision as to whether or not it's appropriate
to put that injunction in place.
MS. PEREZ: Judge, did you skip page 4?
"Cause --
THE COURT: I got -- yeah. I mean --
MS. PEREZ: Because I think --
THE COURT: -- I'm not just -- I'm reading that.
MS. PEREZ: -- you're reading page 5, right?
THE COURT: Right.
MS. PEREZ: And page 4 is where Judge Calderon
gives him the warning about testifying in the
criminal --
THE COURT: Right. I didn't -- didn't skip it.
I didn't read it.
MS. PEREZ: Okay.
THE COURT: And he does -- as Ms. Perez points
out, Judge Calderon says: All right. And,
Mr. Otero-Rivera, I'm not sure if your criminal case
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directly falls on point with regards to these
allegations that are made in the petition. However,
it is a related case, and I just want to advise you
that if you want to testify today, you may do so. But
by doing that, you'd be waiving your right to not
incriminate yourself, and any testimony that you give
could be used against you in that criminal procedure.
Do you understand that? Yes, sir.
So that's certainly something that needs to be
included in the calculus as to whether a reasonable
person in the defendant's position would have voiced
an objection to the contents or the allegations made
in the petition.
All right. Folks, I'm gonna reserve ruling on
this. I know it may affect --
MR. WILLIAMS: No. That's fine, Judge.
THE COURT: But go ahead and proceed as if I've
granted your motion for -- to admit adoptive
admissions when we address the other crimes --
MR. WILLIAMS: Yes, Your Honor.
THE COURT: -- and evidence.
MR. WILLIAMS: We'll do that.
THE COURT: Okay. Thank you. So go ahead and
proceed, then, with the --
MS. PEREZ: Judge, can I just enter what we would
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like the Court to take judicial notice of? The State
has no objection. Just so that we can just --
THE COURT: All right.
MS. PEREZ: -- continue on.
THE COURT: Is it for the purpose of the hearing?
MS. PEREZ: Yeah. Judicial notice of Nicole
Montalvo's statement on October 4th, 2018.
THE COURT: This is a statement to law
enforcement?
MS. PEREZ: Yes.
THE COURT: Okay.
(Counsel conferring.)
MS. PEREZ: I did mark this up for purposes of my
hearing, so I'll submit a clean copy --
THE COURT: Okay.
MS. PEREZ: -- to the Court of the trial
transcript.
MR. WILLIAMS: I have no objection to the two
exhibits that defense counsel showed me, which was a
written statement by Nicole Montalvo made on
October 4th of 2018 in reference to the kidnapping
accusations, and the transcript of Toni Rocker from
the trial in 2018-CF-3532. I have no objection to
them being marked as exhibits and admitted for
purposes of this hearing.
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THE COURT: Okay. Then they'll be received as
Defense Exhibits 1 and 2 for the purposes of this
hearing once you have clean copies of --
(Defendant's Exhibits 1-2 received in evidence.)
MS. PEREZ: Right. I'll get --
THE COURT: And both those -- the second two
documents are -- the testimony is broken --
MS. PEREZ: Yes. It doesn't fit in a clip, but
this is the entire trial transcript.
THE COURT: Okay.
MS. PEREZ: And just for the record, because I
don't know if it was clear, Toni Rocker was the
codefendant on the 18-CF-3532.
THE COURT: What's the case number on that,
her case?
MS. PEREZ: That case number is 18-CF-3536.
MR. WILLIAMS: I said "32." My apologies.
THE COURT: Okay. It looks like --
All right. It looks like the transcript or the
transcription of the testimony is in the court file in
that case.
MS. PEREZ: Yes.
THE COURT: Actually, no. I see testimony of
Nicole Montalvo and testimony of Gabriel Davila. 0h,
here maybe.
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MS. PEREZ: There may be a copy in 18-CF-3532.
THE COURT: No.
It looks like -- it looks like a
transcript of the entire trial, but it doesn't -- it's
not in normal format.
MS. PEREZ: I have filed a motion judgment and
signed it on 3532.
Okay.
THE COURT: In any event --
MS. PEREZ: I'll get the clean copy to the Court.
THE COURT: All right.
All right. Mr.
your motion.
MR. WILLIAMS:
Your Honor?
THE COURT: Yes.
MR. WILLIAMS:
Elaine Montalvo.
Williams, you may proceed with
May we call some witnesses,
Absolutely.
Your Honor, the State would call
(Witness sworn.)
THE WITNESS:
I do.
THE COURT: You may proceed.
MR. WILLIAMS:
Thank you, Your Honor.
ELAINE MONTALVO
was called as a witness and, having been duly sworn,
testified as follows:
DIRECT EXAMINATION
BY MR. WILLIAMS:
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Q.
Matam, could you tell us your full name and spell
your last name for the record, please.
A.
Yes. Elaine Montalvo. M-o-n-t-a-l-v, as in
Victor, -o.
Q.
A.
Q.
And how long have you lived in Osceola County?
Since 1981.
I should have said do you currently live in
Osceola County?
A.
Q.
A.
Q.
children,
A.
Montalvo,
Q.
A.
sorry --
Q.
Yes, I do.
All right. Are you married?
Yes.
And what's your husband's name, please?
Edward Montalvo.
Do you have any children?
Yes, four.
Can you tell us the names and ages of your
starting with the oldest, please.
I have Edward Montalvo, his twin sister Nicole
Steven Montalvo and Christina Montalvo.
Their ages?
Yes, please, if you don't mind.
33 are the twins. 31 is Steven -- no, I'm
yeah, 31 is Steven. 30 is Christina.
And, Ms. Montalvo, when was the last time you saw
your daughter Nicole Montalvo?
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A. The Thursday evening before this happened.
Q. The Thursday before she went missing?
A. Yes.
Q. Okay. Now, it's my understanding that Nicole
Montalvo, your daughter, was married at the time she
disappeared; is that correct?
A. Correct.
Q. To whom was she married?
A. Christopher Otero-Rivera.
Q. Do you know when they got married?
A. May of 2011.
Q. Did they have any children together?
A. Yes, one boy.
Q. One boy. And what is his name?
A. Elijah Rivera.
Q. Now, how would you describe the nature of Nicole
and Christopher's marriage during the times that you saw
it?
A. It was constant fighting, constant battle,
violent, fighting. She would get beat up. It was not a
good marriage at all. She left numerous times.
Q. Okay. So that's what I was gonna ask. Were
there occasions where your daughter Nicole separated from
Christopher Otero-Rivera?
A. Yes, many times.
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Q. "Many times" means that at some point during
those separations, she would go back to him; is that --
MS. PEREZ: Your Honor, I'm going to object to
the State testifying or leading the witness.
THE COURT: As to that I question, I'll overrule.
Go ahead.
THE WITNESS: Sorry.
BY MR. WILLIAMS:
Q. Would she ever go back to him after she left him?
A. Yes. She would move back home with us and stay
with us for awhile, and then she would move back with him
and his family.
Q. Do you know if your daughter Nicole ever formally
filed for divorce from Christopher Otero-Rivera?
A. Yes, she did. In 2018 she started.
Q. Do you know whether that divorce was ever
finalized before she disappeared?
A. No. We were waiting for the custody, and she had
to go through mediation with that first.
Q. All right. Do you know what the custody
arrangements for Elijah were supposed to be following the
divorce once it was going to be final?
A. From what we -- her and I were both told, it had
to be 50/50. That's the State of Florida.
Q. So your understanding -- and to your knowledge,
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hers -- was that after the divorce it would still be 50/50?
A. Yes.
Q. All right. At some point in your life and your
observations between Nicole and her husband, did you become
aware of some specific acts of violence by Christopher
Otero-Rivera on your daughter?
MS. PEREZ: Your Honor, I'm going to object. May
we approach?
THE COURT: Well, I mean, it's -- we don't have a
jury here.
MS. PEREZ: Well --
(At the bench.)
MS. PEREZ: (Inaudible.)
COURT REPORTER: Judge, can you put the bench
mics on? Thank you.
MS. PEREZ: I think that's just a broad, open
question if we're here for similar-fact evidence. The
State has identified 2016, 2018. I read her -- some
of her statements she made allude to a whole bunch of
other stuff. So we're here for similar-fact evidence.
THE COURT: Okay. Well, we don't have a jury
here.
MS. PEREZ: Oh, okay. Well, the witness is on
the stand. The witness is on the stand.
THE COURT: I mean, we'll -- I'll let her give --
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paint the broad picture, and then the State can make
argument as to the specific acts they're asking.
MS. PEREZ: I'm sorry, Judge. The second concern
is change of venue is an issue for the defense, and we
are trying to -- I know the Court's going to attempt
to get a jury in this particular county. We have a
television camera here. She's going to make all these
statements. This is being broadcasted.
And so if this is about similar-fact evidence, I
think we still need to at least limit it down to 2016.
She may go into all these other instances that never
were recorded that we -- I don't know what she's going
to say, but I just think -- I'm concerned about the
fact that we have a camera in here, and she's going to
start saying all these things.
THE COURT: So what's -- what's the relevance of
other acts other than what you're seeking to
introduce?
MR. WILLIAMS: There is none, which is why I'm
not going to ask her about any --
THE COURT: Okay.
MR. WILLIAMS: My question was specific acts. So
I'm going to lead her to --
THE COURT: Right. So you're going to have to
allow some leading questions on this.
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MS. PEREZ: Well, I think it was broad, so --
THE COURT: Okay. Well.
MS. PEREZ: -- if he's going to be specific --
THE COURT: All right. Okay.
(In open court.)
MR. WILLIAMS: May I proceed, Your Honor?
THE COURT: You may.
BY MR. WILLIAMS:
Q. So, Ms. Montalvo, did you become aware of two
specific acts of violence, personally aware, that he
committed upon her?
A. Yes, I did.
Q. All right. So I'd like to direct your attention
specifically to the night of June 6th of 2016. Do you
remember becoming aware of such an incident that night?
A. Yes, I do.
Q. Now, how did you first become aware on that night
that there had been an incident between your daughter and
Mr. Otero-Rivera?
A. The house phone rang and I answered and it was a
girl. She asked if I was Nicole's mother. I said yes.
And she said, you need to come pick Nicole up. I'm gonna
put her on the phone. Chris beat her up.
Q. Okay. Where were -- where were you when you got
that message? You were at home?
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A. I was at my house, yes.
Q. All right. Now, at that time, did you know where
your daughter was living, Nicole?
A. Not specific. I knew the area that she was in.
Q. Why didn't you know where she was living at the
time?
A. Because we weren't allowed to have contact with
her.
Q. Who made that decision?
A. Christopher.
Q. Okay. Now, did you speak to Nicole briefly --
don't tell me what she said, but did you speak to her
briefly over the phone?
A. Yes, I did.
Q. So could you hear her voice?
A. Yes.
Q. And what was her demeanor like when you spoke to
her over the phone?
A. She was crying. She was scared. She was begging
me to come -- I'm sorry.
Q. I didn't hear what you said.
A. She was crying. She was scared.
Q. And I'm going to ask you to try to elevate your
voice a little bit. Okay?
A. Yes. Okay. She was crying and she was scared
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and she was hurt.
Q. Now, in that limited moment on the phone with
that demeanor, what did she tell you over the phone?
A. She told me that Chris beat her up and took off
with the car and to come get her, and she gave me the
address to the house.
Q. Okay. So what did you do after you got the
address and had this brief conversation with Nicole
Montalvo?
A. I told Nicole and also the girl that had called
originally, Brittany, I told them both to call 911. I hung
up the phone and then I called 911.
Q. Were you traveling while you were on the phone
with 911?
A. Yes.
Q. And so were you going to her residence or the
address that she gave you?
A. Yes. And --
Q. Did anybody go with you?
A. Pardon me?
Q. Did anyone go with you to that address?
A. My husband was with me. I woke him up because he
was sleeping when the call came through.
MR. WILLIAMS: Your Honor, may I approach the
witness with what's been marked as State's Exhibit A
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and shown to counsel?
THE COURT: You may.
MR. WILLIAMS: No objection.
BY MR. WILLIAMS:
Q. Ms. Montalvo, I'm going to show you State's
Exhibit A. It's a disc. Do you recognize that disc?
A. Yes.
Q. And what do you recognize on the disc?
A. It's my signature, my initials, and the date.
It's a 911 call.
Q. All right. Did you have an opportunity to listen
to the contents of this disc?
A. Yes, I did.
Q. And what's contained on the contents of the disc?
A. It's me reporting that Nicole needed help, and we
needed the police and the ambulance to show up at the house
and that Chris had taken off in the car. He was not
supposed to be at the house.
Q. So this is your 911 call?
A. Yes.
Q. Does it -- does the call -- the audio on this
disc fairly and accurately represent the call that you made
on the night of June 6th?
A. Yes.
MR. WILLIAMS: At this time, we'd ask the Court
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to admit State's A as State's 1 for purposes of the
hearing.
(Attorneys conferring.)
MR. WILLIAMS: Judge, I believe counsel and I
have a stipulation that we'll admit State's Exhibit 1
but ask the Court to listen to it in chambers as
opposed to in the courtroom.
THE COURT: That's fine.
All right. Is that correct?
MS. PEREZ: Yes, Your Honor.
THE COURT: State's Exhibit A for identification
will be received as State's Exhibit 1 in evidence.
(State's Exhibit 1 received in evidence.)
BY MR. WILLIAMS:
Q. So eventually that night did you arrive at the
residence where Nicole was located?
A. Yes, we did.
Q. Who was present when you actually arrived?
A. When we arrived, the police officer was already
there. And there was a girl named Brittany and another --
I don't know who the gentleman was; I think it was her
husband -- and Nicole.
Q. When you say "her husband," you mean Brittany's
husband?
A. Brittany's husband, yes.
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Q. Okay.
A. And Nicole.
Q. So did you have an opportunity to observe Nicole
when you arrived at the residence?
A. Yes, I did.
Q. And what type of residence was it? A house, a --
A. It was a house.
Q. All right.
A. They were renting.
Q. So can you describe any injuries or can you just
better describe physically, Ms. Montalvo, when you observed
her when you arrived that night?
A. As soon as we arrived, Nicole came out and she
had -- she had a big bruise, redness, on her forehead that
was already swelling. She was crying. Her shirt was
ripped. She had bruises on her, and she was really scared
and really hurt and upset.
MR. WILLIAMS: May I approach the witness with
what's been marked as State's B for purposes of the
hearing?
THE COURT: You may.
MR. WILLIAMS: Previously shown to defense
counsel.
BY MR. WILLIAMS:
Q. And, Ms. Montalvo, I'm showing you State's
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Composite Exhibit B. It's five photographs. Do you
recognize those photographs?
A. Yes, I do.
Q. And have you had an opportunity, a few minutes
before this hearing, to look at those photos?
A. Yes.
Q. And what do you recognize them to be?
A. They are the night that we went to the house to
pick up Nicole.
Q. They are photographs of Nicole Montalvo?
A. Yes, they are.
Q. And do their fairly, accurately -- fairly and
accurately depict the way your daughter Nicole looked on
the night of June 6th, 2016?
A. Yes.
MR. WILLIAMS: At this time, I would ask
the Court to admit State's Exhibit B as State's 2.
MS. PEREZ: We have no objection.
THE COURT: There being no objection, State's
Exhibit B will be received as State's Composite
Exhibit 2.
(State's Exhibit 2 received in evidence.)
MR. WILLIAMS: And if it's okay with defense
counsel, I'll just hand the exhibit to the Court for
review --
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THE COURT: Okay.
MS. PEREZ: No objection.
MR. WILLIAMS: -- finder of fact.
THE COURT: Thank you.
MR. WILLIAMS: Yes, your Honor.
BY MR. WILLIAMS:
Q. So you've described your daughter. Did you have
a chance to look around the residence?
A. Yes. I actually went inside while the police
were taking Nicole's statement and the ambulance was there.
So I actually went inside to collect some belongings for
her.
Q. And what did you observe?
A. As soon as I walked into the house, there was a
wooden baby gate that was leaning up against the wall, and
it was, like, completely mangled. Everything -- it was
falling apart. There was holes all through the walls.
The coffee -- the kitchen table was turned upside
down. There was a vacuum cleaner hose that was, like,
thrown across the floor. There was just -- it looked like
there was a fight.
Q. The house was in disarray; is that fair?
A. Yes, correct.
Q. Okay. And you said law enforcement was already
present and took a statement from your daughter that night,
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correct?
A. Yes. My husband stayed outside with the law
enforcement and Nicole, and I went inside with Brittany to
try to get Elijah's clothes and Nicole's clothes so I could
take her home.
Q. So when you arrived at the scene, did you have
another conversation with your daughter Nicole?
A. Yes.
Q. How long did it take you to get from your
residence where you got the initial call to the residence
where she was located?
A. It was probably between 15 and 20 minutes from
the actual phone -- first phone call because I was on the
phone with 911 also.
Q. All right. And how long after you arrived did
this conversation with Nicole occur?
A. Immediately, as soon as we got out of the car.
Q. So you spoke to her before you went inside the
house and looked around?
A. Yes.
Q. All right. What was her demeanor like when you
met her in person?
A. She was crying and she was scared.
Q. Same demeanor as you experienced on the phone?
A. Yes.
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Q. All right. Did she tell you what happened while
she was in that state and arrived face-to-face?
A. She told me that her --
Q. Did she tell you what happened?
A. Yes, she did.
Q. What did she tell you happened?
A. She told me that her and Chris got into a fight;
that she took a beer out of the fridge, and Chris
headbutted her. And he pushed her up against the wall and
put her face through the wall. He took the baby gate and
hit her with the baby gate all up and down her back and her
side, and he pulled her by her hair through the house.
And -- and he -- she was calling -- she was getting scared
and everything, and he got in the car and he left.
Q. Okay. So was Mr. Otero-Rivera on scene when you
arrived?
A. No.
Q. Did you eventually have contact with Elijah that
night?
A. Yes. We went to pick up Elijah because he was
supposed to be at his aunt's house. We went to get him
there, and he wasn't there because Chris had already taken
him.
Q. All right. Where was he when you made contact
with him?
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A. He came -- Wanda, Chris' mother, finally brought
Elijah to my house at, like, 5 in the morning.
Q. So Wanda Rivera delivered Elijah to your house?
A. Yes.
Q. Okay. Now, at some point after this incident
that you just described, did your daughter Nicole separate
from Mr. Otero-Rivera?
A. Yes. She stayed with us for a while, and then
she went back to Chris.
Q. So then fast forwarding now to October of 2018,
did you become aware of a second incident where there was
violence between -- or by Christopher Otero-Rivera on your
daughter Nicole?
A. Yes.
Q. So I'm gonna go now to October 3rd, early morning
hours of October 4th of 2018. How did you first become
aware that night that there had been an incident between
Nicole and Christopher?
A. Well, at that time, Nicole and Chris -- Nicole
and Elijah were actually living with us again.
Q. Okay.
A. And she had already separated from -- or left
Chris. So Elijah stayed with us in the evenings when
Nicole went to work. So she was -- she came home from work
and she -- I was in my office watching TV, and she walked
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into the doorway. And I could just tell something
happened.
Q. All right. So what did -- describe what you
actually saw. You said you could tell something happened.
What was her demeanor like? Start with that, please.
A. As soon as -- she just stood in the doorway. She
was holding herself like this, trying to hold her shirt.
THE COURT: I'm sorry, holding herself like what?
THE WITNESS: I'm sorry. She was holding herself
like this --
BY MR. WILLIAMS:
Q. -- arms crossed --
A. -- trying to hold her --
Q. -- with her hand on the opposite shoulder?
A. Yes. And she was trying to hold her shirt
together because her entire shirt buttons were ripped off
and it was ripped. So she was holding -- her hair was all
messed up. She had, like, stuff in her hair, like twigs
and branches or leaves. And her face, her mouth was all
bloody. She had dried blood and it was swollen, and she
was crying and shaking.
Q. So did she tell you what happened when you saw
her like that --
A. Yes.
Q. -- that night?
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A. Yes.
Q. What did she say?
A. She told me that Chris and Toni Rocker jumped
her -- and -- or Chris and Toni took her, kidnapped her,
and took her out to Poinciana and tried to kill her.
Q. All right. Was anybody else in the house that
night?
A. Yes.
Q. Who else was present --
A. My --
Q. -- that night when she got home?
A. My husband was home sleeping. My youngest
daughter Christina was home, and Elijah was home.
Q. And you said Nicole was living with you, right?
A. Yes, she was.
Q. All righ
Preview
Filing # 111204450 E-Filed 08/03/2020 06:03:30 PM 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND 2 FOR OSCEOLA COUNTY, FLORIDA CRIMINAL JUSTICE DIVISION 3 4 5 STATE OF FLORIDA, 6 Plaintiff, vs. CASE NOS.: 49-2019-CF-3738-0S 7 49-2019-CF-4126-0S CHRISTOPHER J. OTERO-RIVERA, 8 ANGEL LUIS RIVERA, DIVISION NO.: 101 9 Defendants. / 10 11 12 MOTION HEARINGS 13 BEFORE 14 THE HONORABLE JON B. MORGAN 15 16 17 In the Osceola County Courthouse 2 Courthouse Square 18 Courtroom 5-F Kissimmee, Florida 34741 19 June 17, 2020 Stenographically reported 20 21 22 23 24 25 Ninth Judicial Cireuit Court Reporting Services24 25 APPEARANCES: M. RYAN WILLIAMS, ESQUI JAMIE A. McMANUS, ESQUI. RE RE Designated Assistant State Attorneys Fifth Judicial Circuit 425 North Orange Avenue Box 63 Orlando, Florida 32801 On behalf of the State of Florida MIGDALIA PEREZ, ESQUIRE KIMBERLY ANN LaSURE, ESQUIRE Perez LaSure Law, LLC 517 Bryan Street Kissimmee, Florida 3474 On behalf of the Defendant Christopher Otero-Rivera 1 FRANK J. BANKOWITZ, ESQUIRE Frank J. Bankowitz, P.A. 215 East Livingston Str Orlando, Florida 32801 On behalf of the Defendant Angel Luis Rivera Ninth Court eet Judicial Reporting Cireuit Services24 25 INDEX OF PROCEEDINGS June 17, 2020 MOTIONS FOR COURT TO TAKE JUDICIAL NOTICE STATE'S MOTION FOR ADOPTIVE ADMISSION STATE'S WILLIAMS RULE MOTION TESTIMONY OF ELAINE MONTALVO Direct Examination By Mr. Williams Cross-Examination Ms. Perez TESTIMONY OF LUCAS CASTILLO Direct Examination By Ms. McManus Cross-Examination By Ms. Perez Redirect Examination By Ms. McManus TESTIMONY OF ASHLEY FERRELL Direct Examination By Mr. Williams Cross-Examination By Ms. Perez TESTIMONY OF CHRISTINA MONTALVO Direct Examination By Mr. Williams Cross-Examination By Ms. Perez TESTIMONY OF ROBERT HANSELL, UR., Direct Examination By Mr. Williams Cross-Examination By Ms. Perez TESTIMONY OF GABRIEL DAVILA Direct Examination By Mr. Williams Cross-Examination By Ms. Perez TESTIMONY OF DUSTIN GONZALEZ Direct Examination By Mr. Williams Cross-Examination By Ms. Perez Redirect Examination By Mr. Williams ARGUMENT By Mr. Williams By Ms. LaSure CERTIFICATE OF REPORTER Ninth Judicial Cireuit Court Reporting Services 101 110 113 128 130 146 154 173 180 185 193 21624 25 FOR THE STATE: Number Number Number Number Number Number Number YOAUBWNHHE Number 8 Number 9 Number 10 Number 11 Number 12 Number 13 Number 14 Number 15 Number 16 Number 17 Number 18 EXHIBITS CD - 911 Call Composite - 5 Photographs Composite - Medical Records Composite - Certified Records CAD Report Petition for Injunction Injunction Hearing Transcript - 10/16/18 Certified Copy - Final Judgment Injunction Composite - 5 Photographs CD - 911 Call Composite - 2 Photographs Composite - 4 Photographs CD - Interview of Christopher Otero-Rivera T-Mobile Records Report by Detective Davila Certified Copy - Bond Paperwork CD - Jail Calls Transcript of Plea Hearing - 7/19/19 FOR THE DEFENSE: Number 1 Number 2 Statement of Nicole Montalvo - 10/4/2018 Transcript of Toni Rocker Trial Ninth Judicial Cireuit Court Reporting Services 39 41 52 53 70 82 89 91 106 109 123 128 140 144 144 162 183 184 28 2824 25 PROCEEDINGS (June 17, 2020; 10:04 a.m.) THE COURT: Okay. So ... and I think we're -- unless you-all have something else, I think we have everything except for the Otero-Rivera and Rivera cases, which -- okay. So we'll take a five-minute recess and come back in and address the -- those cases. (Recess from 10:09 a.m. to 10:12 a.m.) THE COURT: Okay. And we'll go on record in Cases 19-CF-3738, State versus Christopher Otero-Rivera, and 19-CF-4126, State versus Angel Rivera. We're here on a couple of motions this morning. MS. PEREZ: Good morning, Your Honor. THE COURT: Good morning. The first thing I've got is the State's request to take judicial notice. assume that's noncontroversial? MS. PEREZ: No. We've gone over what we have stipulated to as far as judicial notice, and the defense also has two exhibits for the Court to take judicial notice. The State's not objecting as well. THE COURT: Okay. So as to the State's request to take judicial notice, which was filed and listing the three affidavits for the search warrants, the Ninth Judicial Cireuit Court Reporting Services I24 25 defense has no objection; is that correct? MS. PEREZ: Oh, that's for the other motion that we're not dealing with, but no, we don't object to that, Your Honor. THE COURT: Okay. And the Court will take judicial notice of the documents requested in the State's notice then. I have -- I have two hearings, then, or two motions set for hearing today I believe: The State's motion to admit adoptive admissions and the State's notice of intent to introduce evidence of other crimes. Is that -- MS. PEREZ: That's correct. MR. WILLIAMS: That's correct, Your Honor. Ryan Williams and Jamie McManus for the State of Florida. Good morning. THE COURT: And I've reviewed the motions, and I've reviewed the cases cited within the motions. So, State, Mr. Williams, you may proceed with -- MR. WILLIAMS: Yes, Your Honor. As to the motion for adoptive admission, I would like to take that one first because some of the witnesses referenced in the Williams Rule motion sort of depend upon the Court's admitting those admissions. I don't know that I have Ninth Judicial Cireuit Court Reporting Services24 25 a whole lot to add to what's in my written motion. If Your Honor has specific questions about either the case law or the witness, of the argument, I'm happy to address them. But the simple version is that our position is -- MS. PEREZ: If -- if -- if I may, Your Honor? I mean, if I may? Sorry. Migdalia Perez on behalf of Christopher Otero-Rivera. The State is going to call witnesses. I'm going to ask that we invoke the rule, number one. Number two, the defense is not objecting to the Montalvo family remaining in the courtroom, and we can proceed from there. THE COURT: Okay. We'll note that Mr. Angel Rivera is now present in the courtroom, as well as Christopher Otero-Rivera. Okay. So -- MR. WILLIAMS: I think where we were is I had told Your Honor that if you had specific questions about -- THE COURT: So the State's seeking to admit the -- essentially the petition -- MR. WILLIAMS: The petition filed by -- THE COURT: -- for injunction? MR. WILLIAMS: -- Nicole Montalvo. Yes, Ninth Judicial Circuit Court Reporting Services24 25 Your Honor. THE COURT: And the statement -- factual basis statement by assistant state attorney Moffitt. MR. WILLIAMS: That's correct. They both -- it's the State's view and position that both of those statements fall under the exception under 18(b) -- 90.803(18) (b). Thank you. THE COURT: Defense? MS. PEREZ: Judge, under the State's request to admit adoptive admissions, the State cited to a number of different cases. Our position is the cases that the State cited to, Globe v. State, Nelson v. State, and Privett v. State, I believe that those cases are cases that are distinguishable from the facts in this particular case. In Globe, Nelson, and Privett, those were statements made by either a codefendant or a witness that was a witness to a criminal case and statements being made by the codefendant in reference to the actions -- the criminal actions of a defendant that completely remain silent. In those particular cases, the courts allowed it as a silence -- acquiescing to silence. In this particular case, what the State is trying to do is say at -- for example, one of the things he wants to bring in is the plea -- the plea where ASA Ninth Judicial Circuit Court Reporting Services24 25 Moffitt laid out -- laid out a factual basis for purposes of the plea. Number one, the defendant Otero-Rivera did not take a plea to kidnapping. He did not accept the plea to robbery. This was a negotiated plea between the State and the defense. This is a bargain and exchange for, and I don't believe that the adoptive admission, that was the intent of that rule for purposes of a plea. In that case when ASA Moffitt laid out the factual basis in order for Judge Wooten to accept the plea, number one, I believe ASA Moffitt didn't even lay out a record for a kidnapping. He sort of laid out a record in order for us to accept the plea. And so I think the circumstances are different. In Privett, it lays out a number of factors that the Court should consider if you're going to allow an adoptive admission. But the most important thing out of those factors that they laid out was that the Court has to consider the circumstances in which these statements are being made. I think that it would be a -- a chill to the Court to say if you take a plea, those statements could be used against you as an adoptive admission. I think it would halt the complete criminal system, Ninth Judicial Cireuit Court Reporting Services24 25 10 because this is the way we operate. But most importantly, I think it's operating in bad faith on the part of the State because this was a bargain and exchange for. This was not a situation where the defendant would actually stand there and -- oh, I'm sorry. THE COURT: Slow down. You're gonna -- MS. PEREZ: I know. Sorry about that. This is not a situation where the defendant, which is one of those factors, if someone is making these statements, it would be a situation where if you are completely innocent, you would object to what's being said or you would say, hold on, that's not me. When you're taking a plea, that's not what's happening. We have already negotiated between the State and the defense. We have come to a conclusion how we're going to resolve this case. The State cited to the transcript where it goes over the plea form and it says that when they laid out a factual basis, it was only for purposes of the plea. The State failed to identify for purposes of a plea. Otherwise, it's not an admission made by the defendant. And, quite frankly, I think what would be happening at this point is that if in the case of a plea where this could come back and haunt the Ninth Judicial Cireuit Court Reporting Services24 25 11 defendant, like in the sense where the State is trying to use it now, I think what I'm looking at is potentially the defendant saying, I'm gonna withdraw my plea. My attorney was ineffective because I was not put on notice that this could come in as an adoptive admission. But besides that, I just think that the case law on the Privett, Globe, and Nelson clearly make out these factors that the State can't make out as far as the circumstances under -- when these -- the circumstances in -- when these admissions are being made where the defendant is remaining silent. It's very different when you're dealing with a plea as opposed to someone talking about some criminal action and you're staying quiet, which happened in Privett Nelson, and Globe. And so I think the State is using the adoptive admission improperly, and I don't think that was the intent of the rule. And so I would object to that admission. Number two, the State wants to also bring in the -- his admission or silence at the injunction hearing. I think that stands for the same thing. Other than to add to that is that Mr. Otero is brought into a courtroom for a civil injunction. On page 9 of Ninth Judicial Cireuit Court Reporting Services24 25 12 the injunction, Judge Calderon essentially warns or advises the defendant that this injunction hearing may be related to a criminal case and anything you say can be used against you. At that point, Mr. Otero is not even represented by counsel. But I think the judge is making that extra effort to say, hey, if you say anything, this is gonna be held against you. The State is now saying because he didn't say anything, that's an adoptive admission. Number two, Nicole Montalvo had an opportunity to testify at that hearing. She was represented by counsel, but she also wasn't even subject to cross-examination. And so I just think again, when you look at the factors under adoptive admissions, the most important note is the Court to consider the circumstances in which these statements were being made. And I think under both, they're both in a courtroom; one is a plea, a bargain and exchange for, and one is where a court has advised my client, you don't have counsel -- I wasn't representing him at that time -- you might wanna be careful what you say, and he elects not to testify. So I just think that the State is using the adoptive admission in contrast to what it was essentially made for, which is not what we're looking Ninth Judicial Cireuit Court Reporting Services24 25 13 at in these two circumstances. And so the defense would object to the State -- THE COURT: Well, what you're saying is that a reasonable person would not feel compelled to contest -- MS. PEREZ: Correct. THE COURT: -- or object to the statements made? MS. PEREZ: So if I can lay -- if I can read these -- the factors that the courts say the Court should look at is: The statement must have been heard by the party claimed to have acquiesced. Clearly, the defendant's in the courtroom during both instances. The statement must have been understood by the defendant. Clearly he understands. The subject matter of the statement is within the knowledge of the defendant. He's there for a plea. He's there for an injunction hearing. No physical, emotional impediments are number four. This is what's interesting. Number five, the personal makeup of the speaker or his relationship to the party or events are not such as to make an unreasonable -- make it unreasonable to expect a denial. At the -- at the plea hearing, he's standing there expecting to accept the plea, which was Ninth Judicial Cireuit Court Reporting Services24 25 14 negotiated between his attorney, myself, and the State. The State agreed to drop kidnapping, drop the robbery, which is what we do most of the time, and this is how the court system operates. I just think that would be in bad faith, almost a breach of contract. I tell the defendant the State is offering you this, and in -- in lieu of resolving this case, he says, okay. And it's very clear in the transcript that we agreed to a factual basis for purposes of the plea and nothing more. If we were not there, if we had not accepted the plea, we would just be going forward to trial. And so I think that's taking it out of context, saying that under the adoptive admission, you can use that. And again, in Privett, what's most important was that the court to determine the person -- whether the person's silence does constitute an admission, the circumstance, and the nature of the statement. The circumstance is he's taking a plea. He entered into a contract with the State. Your Honor's very familiar with that. And the same thing at the injunction. He was warned or advised by Judge Calderon, you don't have counsel, but if you say anything, this may be related to your criminal case. And he -- he decided to not object or fight the Ninth Judicial Cireuit Court Reporting Services24 25 injunction because he wasn't represented. So whatever Ms. Montalvo testified to, she testified to. It's a civil matter, and she was able to procure her injunction. But that doesn't mean that he agreed with her statement. He remained silent. He didn't have counsel. He was under the advice of the Court that what he could -- what he says can be held against him, and he had no counsel to assist him at that hearing. And so, therefore, I just think that the adoptive admission wasn't meant for purposes of a plea or at an injunction hearing where someone's not even represented by counsel. THE COURT: Anything further, Mr. Williams? MR. WILLIAMS: Yes, Your Honor. So defense counsel's objections to the State using these admissions by Mr. Christopher Otero-Rivera are that that's not what the rule meant. I don't think the rule encompassed originally using a defendant's statements or motions in a motion to dismiss either, but the courts of this state in Palmore, which is cited in the State's motion, said that if a defendant acknowledges certain statements by a victim in a sworn motion to dismiss, that's an adoptive admission. I cited Palmore for the obvious reason, that Ninth Judicial Cireuit Court Reporting Services 1524 25 16 there are some pretty clear parallels that occurred in that court proceeding -- I'm sorry. Go ahead, Your Honor. THE COURT: As to the plea in Case 18-CF-3532, is it relevant that he's pleaing to three counts and some of the factual bases to -- as to matters that he's not pleaing to -- so, I mean, would a reasonable person jump up and say, no, he's wrong about that? MR. WILLIAMS: I understand Your Honor's point, and I would say actually that would give him more reason to object to the factual basis because the factual basis laid out by Mr. Moffitt pretty clearly encompasses acts that would constitute a kidnapping. And, in fact, the Court, if you read the transcript, I'm sure you did, asked if there was an objection to the factual basis. THE COURT: Right. I saw that, and Ms. Perez didn't object to it but -- for the -- MR. WILLIAMS: Correct -- THE COURT: -- purposes of a plea -- MS. PEREZ: Right. THE COURT: -- anything said as to Counts 1 and 2 is kind of superfluous. The State is -- as part of the agreement is nol-prosing those counts. And so the relevant portion of the factual basis, it seems, would Ninth Judicial Cireuit Court Reporting Services24 25 17 be as to Counts 4, 5, and 6, the tampering with the witness, unlawful possession of stolen credit or debit cards, and the battery. MR. WILLIAMS: Well, Your Honor referenced the reasonable person. The State would posit that a reasonable person hearing he's been accused of doing these things, knowing, according to defense counsel, that he's not entering a plea to them and heard them, if they were wrong, would speak up at that point and say, no, that didn't happen. Because the legal effect of the statement is really not a fact- -- not really, it's not a factor -- THE COURT: Right. MR. WILLIAMS: -- under the calculus that's been adopted for adoptive admissions. Legal effect is a non sequitur. What matters is what he said and what he knew at the time and whether or not a reasonable person would have denied those. So while I can see the point that he wasn't charged with kidnapping, and at no point does the State intend to reference kidnapping in front of the jury because he didn't plea to that -- THE COURT: Right. MR. WILLIAMS: -- what -- what was said in his presence and that he did not deny, we believe, is Ninth Judicial Cireuit Court Reporting Services24 25 relevant and an adoptive admission under 90.803(18) as to the kidnapping. As to the statement in Ms. Montalvo's petition, I -- I take the point that the Court warned Mr. Montalvo [sic] about speaking, but that came after he acknowledged that he had read the petition and that did not object or want to hear it. So I would feel differently and I probably wouldn't have filed this motion if he had been warned because I think a reasonable person would stand silent in those circumstances. But that warning came after Mr. Montalvo agreed that he had read what was in it and was not seeking any factual basis or hearing on it. THE COURT: And, Ms. Perez, as to the injunction hearing -- MS. PEREZ: Yes. THE COURT: -- it's -- wouldn't a reasonable person say those allegations are not true if -- particularly where he's facing the possibility of significant restrictions on his freedom of moment -- movement, his ability to possess firearms, and so forth, ability to see his son if the Court accepts the contents of the petition as true? So it seems like a reasonable person would have reason to say, no, that's Ninth Judicial Cireuit Court Reporting Services24 25 not true. MS. PEREZ: Well, I think the difference is that the warning came immediately. If you look at the transcript, on -- I'm sorry, not the warning. He asked him had he read the petition. Reading the petition is just reading the petition. Following that reading the petition is a question -- or a statement by Judge Calderon that says: Mr. Otero, I'm not sure if your criminal case directly falls on point with regards to these allegations that are made in the petition. However, it is a related case, and I just want to advise you that if you wanna testify today, you may do so, but by doing that, you'd be waiving your right not to incriminate yourself and any testimony that you could be -- that could be used against you in a criminal procedure. Again, the circumstances surrounding him is he is already being held in custody on a criminal case. Now he's in front of Judge Calderon on a civil case. And Judge Calderon is saying, hey, let me warn you, though. This could be related, and I believe it is related, and I think a reasonable person, after going through IAs, having a public defender appoint him saying, hey, do not make any statements in a court of Ninth Judicial Cireuit Court Reporting Services 1924 25 20 law without any representation -- he had a public defender but not at the civil injunction hearing. So, no, I don't think that he is in a situation as your average, reasonable person because he is being held in custody on a criminal case that the judge, right there that morning, is saying, let me warn you, this is -- this could be related, and I believe it is related to the criminal case. So it's not reasonable for him to say, oh, by the way, you're wrong. He has elected not to do that because he doesn't have representation, and he's been warned. THE COURT: And the warning comes in a little bit further. But -- MS. PEREZ: It comes in on page 4. THE COURT: All right. MS. PEREZ: Right. THE COURT: I understand the argument, anyway. Okay. Anything further from either side? MS. PEREZ: If I may? I believe one of the points the State wants to -- and I don't know if we're going to address this now. What he would like to do is play the audio of the hearing, which I didn't know if you want to address that. THE COURT: Audio of which hearing? Ninth Judicial Cireuit Court Reporting Services24 25 21 MS. PEREZ: Of the injunction hearing. So what we have is a transcript of the injunction hearing, and if this is about adoptive admissions, I'm not sure what's the point in bringing the audio. Because I think what happens is now it becomes if Your Honor believes that it's -- THE COURT: Right. MS. PEREZ: -- admissible, it becomes more prejudicial than probative, almost brings Ms. Montalvo to life, which I think then invokes the sympathy of the jurors. I think that would be improper. So if Your Honor is going to say this is an adoptive admission, I would ask the Court to limit it only to transcript as opposed to actually playing the live audio. THE COURT: All right. I understand -- MS. PEREZ: Thank you. THE COURT: -- your argument. Okay. What says -- both of these are at least unique to -- to me. I don't see any cases directly on point, although there are cases that are informative. And the question boils down to, as both sides can see, whether a reasonable person in the defendant's position would have objected or expressed disagreement with the statement proffered by -- or made by Ninth Judicial Cireuit Court Reporting Services24 25 22 Mr. Moffitt, the assistant state attorney, as to a factual basis during the plea colloquy in Case 18-CF-3532. MS. PEREZ: Judge, if I can just add one -- one point? I don't think I made it. Just for purposes of a plea, I think when a -- when an attorney's representing a client and we're going through these plea negotiations, the attorney is actually speaking on behalf of the defendant. And I believe that when we go -- when we take a plea, the defendant -- THE COURT: You're speaking on behalf of the defendant. You -- you adopted the statement because you said you agreed to it. MS. PEREZ: Well, I adopted -- I adopted the statement as -- for purposes of the plea, and that's clear. It was a fact- -- I accept the factual basis for purposes of the plea, and that's the limitation right there. And the defendant, as a reasonable person, would just follow the lead of his attorney. So he's not a reasonable person for purposes of that adoptive admission because as the attorney, I'm speaking on behalf of my client. So that's the finer point I wanted to make. THE COURT: I think that kind of cuts both ways, Ninth Judicial Cireuit Court Reporting Services24 25 23 but okay. And then the question is further whether a reasonable person who is a respondent in a domestic violence injunction case, while he has a pending criminal case arising out of the circumstances that gave the -- referred to in the petition, would voice objection to the petition or state that he disagrees with the contents of the petition. And, Mr. Williams, it doesn't seem that Mr. Otero-Rivera, in the injunction proceeding, ever specifically said that he agreed or disagreed with the contents of the petition. He says -- I guess impliedly he may -- or you may take it as an implied agreement with the petition, his decision not to go forward with the hearing. MR. WILLIAMS: I would agree that Mr. Otero-Rivera does not expressly adopt what Ms. Montalvo writes in her petition. What I would point out is that the petition is a shell with virtually nothing on it except for the two pages where she hand writes what happened that night. But I agree -- it should be in front of Your Honor, but if not, we have it marked as an exhibit. THE COURT: Well, I've got the petition -- or the transcript here that you attached to -- Ninth Judicial Cireuit Court Reporting Services24 25 24 MR. WILLIAMS: And I would -- I would concede that point more readily if there were a bunch of other writings, legalistic or otherwise, within the petition. But the whole substance of the petition and the basis upon which it's going to be granted is what Ms. Montalvo alleges happened on the night of October 3rd and October 4. And he is specifically asked if he wants a hearing -- THE COURT: Right. MR. WILLIAMS: -- and to call testimony. And the other thing I -- I thought was interesting about defense counsel's testimony is she injected a reasonable person as to their knowledge of legal proceeding. Mr. Otero-Rivera, this was not his first legal proceeding, which I think is relevant at this injunction because -- and I can prove this up if necessary, he has prior attempts at injunctions and prior interactions with the court system. But I -- I understand the Court's point that he never expressly says he agrees with Nicole Montalvo's allegations in her petition. THE COURT: Judge Calderon said -- was asked: All right. Did you have an opportunity to review that petition, which would include the written statement by Ninth Judicial Cireuit Court Reporting Services24 25 25 Ms. Montalvo. The defendant answers: Yes. And do you want to go forward with the hearing regard -- with regards to that petition? So if you wanna have a hearing, you can. We'll take testimony, and I'll make a decision with regards to it. Or you can waive the right to that hearing, and the Court can make a decision as to whether or not it's appropriate to put that injunction in place. MS. PEREZ: Judge, did you skip page 4? "Cause -- THE COURT: I got -- yeah. I mean -- MS. PEREZ: Because I think -- THE COURT: -- I'm not just -- I'm reading that. MS. PEREZ: -- you're reading page 5, right? THE COURT: Right. MS. PEREZ: And page 4 is where Judge Calderon gives him the warning about testifying in the criminal -- THE COURT: Right. I didn't -- didn't skip it. I didn't read it. MS. PEREZ: Okay. THE COURT: And he does -- as Ms. Perez points out, Judge Calderon says: All right. And, Mr. Otero-Rivera, I'm not sure if your criminal case Ninth Judicial Cireuit Court Reporting Services24 25 26 directly falls on point with regards to these allegations that are made in the petition. However, it is a related case, and I just want to advise you that if you want to testify today, you may do so. But by doing that, you'd be waiving your right to not incriminate yourself, and any testimony that you give could be used against you in that criminal procedure. Do you understand that? Yes, sir. So that's certainly something that needs to be included in the calculus as to whether a reasonable person in the defendant's position would have voiced an objection to the contents or the allegations made in the petition. All right. Folks, I'm gonna reserve ruling on this. I know it may affect -- MR. WILLIAMS: No. That's fine, Judge. THE COURT: But go ahead and proceed as if I've granted your motion for -- to admit adoptive admissions when we address the other crimes -- MR. WILLIAMS: Yes, Your Honor. THE COURT: -- and evidence. MR. WILLIAMS: We'll do that. THE COURT: Okay. Thank you. So go ahead and proceed, then, with the -- MS. PEREZ: Judge, can I just enter what we would Ninth Judicial Cireuit Court Reporting Services24 25 like the Court to take judicial notice of? The State has no objection. Just so that we can just -- THE COURT: All right. MS. PEREZ: -- continue on. THE COURT: Is it for the purpose of the hearing? MS. PEREZ: Yeah. Judicial notice of Nicole Montalvo's statement on October 4th, 2018. THE COURT: This is a statement to law enforcement? MS. PEREZ: Yes. THE COURT: Okay. (Counsel conferring.) MS. PEREZ: I did mark this up for purposes of my hearing, so I'll submit a clean copy -- THE COURT: Okay. MS. PEREZ: -- to the Court of the trial transcript. MR. WILLIAMS: I have no objection to the two exhibits that defense counsel showed me, which was a written statement by Nicole Montalvo made on October 4th of 2018 in reference to the kidnapping accusations, and the transcript of Toni Rocker from the trial in 2018-CF-3532. I have no objection to them being marked as exhibits and admitted for purposes of this hearing. Ninth Judicial Cireuit Court Reporting Services 2724 25 28 THE COURT: Okay. Then they'll be received as Defense Exhibits 1 and 2 for the purposes of this hearing once you have clean copies of -- (Defendant's Exhibits 1-2 received in evidence.) MS. PEREZ: Right. I'll get -- THE COURT: And both those -- the second two documents are -- the testimony is broken -- MS. PEREZ: Yes. It doesn't fit in a clip, but this is the entire trial transcript. THE COURT: Okay. MS. PEREZ: And just for the record, because I don't know if it was clear, Toni Rocker was the codefendant on the 18-CF-3532. THE COURT: What's the case number on that, her case? MS. PEREZ: That case number is 18-CF-3536. MR. WILLIAMS: I said "32." My apologies. THE COURT: Okay. It looks like -- All right. It looks like the transcript or the transcription of the testimony is in the court file in that case. MS. PEREZ: Yes. THE COURT: Actually, no. I see testimony of Nicole Montalvo and testimony of Gabriel Davila. 0h, here maybe. Ninth Judicial Cireuit Court Reporting Services24 25 MS. PEREZ: There may be a copy in 18-CF-3532. THE COURT: No. It looks like -- it looks like a transcript of the entire trial, but it doesn't -- it's not in normal format. MS. PEREZ: I have filed a motion judgment and signed it on 3532. Okay. THE COURT: In any event -- MS. PEREZ: I'll get the clean copy to the Court. THE COURT: All right. All right. Mr. your motion. MR. WILLIAMS: Your Honor? THE COURT: Yes. MR. WILLIAMS: Elaine Montalvo. Williams, you may proceed with May we call some witnesses, Absolutely. Your Honor, the State would call (Witness sworn.) THE WITNESS: I do. THE COURT: You may proceed. MR. WILLIAMS: Thank you, Your Honor. ELAINE MONTALVO was called as a witness and, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. WILLIAMS: Ninth Court Judicial Reporting Cireuit Services 2924 25 Q. Matam, could you tell us your full name and spell your last name for the record, please. A. Yes. Elaine Montalvo. M-o-n-t-a-l-v, as in Victor, -o. Q. A. Q. And how long have you lived in Osceola County? Since 1981. I should have said do you currently live in Osceola County? A. Q. A. Q. children, A. Montalvo, Q. A. sorry -- Q. Yes, I do. All right. Are you married? Yes. And what's your husband's name, please? Edward Montalvo. Do you have any children? Yes, four. Can you tell us the names and ages of your starting with the oldest, please. I have Edward Montalvo, his twin sister Nicole Steven Montalvo and Christina Montalvo. Their ages? Yes, please, if you don't mind. 33 are the twins. 31 is Steven -- no, I'm yeah, 31 is Steven. 30 is Christina. And, Ms. Montalvo, when was the last time you saw your daughter Nicole Montalvo? Ninth Judicial Cireuit Court Reporting Services 3024 25 31 A. The Thursday evening before this happened. Q. The Thursday before she went missing? A. Yes. Q. Okay. Now, it's my understanding that Nicole Montalvo, your daughter, was married at the time she disappeared; is that correct? A. Correct. Q. To whom was she married? A. Christopher Otero-Rivera. Q. Do you know when they got married? A. May of 2011. Q. Did they have any children together? A. Yes, one boy. Q. One boy. And what is his name? A. Elijah Rivera. Q. Now, how would you describe the nature of Nicole and Christopher's marriage during the times that you saw it? A. It was constant fighting, constant battle, violent, fighting. She would get beat up. It was not a good marriage at all. She left numerous times. Q. Okay. So that's what I was gonna ask. Were there occasions where your daughter Nicole separated from Christopher Otero-Rivera? A. Yes, many times. Ninth Judicial Cireuit Court Reporting Services24 25 32 Q. "Many times" means that at some point during those separations, she would go back to him; is that -- MS. PEREZ: Your Honor, I'm going to object to the State testifying or leading the witness. THE COURT: As to that I question, I'll overrule. Go ahead. THE WITNESS: Sorry. BY MR. WILLIAMS: Q. Would she ever go back to him after she left him? A. Yes. She would move back home with us and stay with us for awhile, and then she would move back with him and his family. Q. Do you know if your daughter Nicole ever formally filed for divorce from Christopher Otero-Rivera? A. Yes, she did. In 2018 she started. Q. Do you know whether that divorce was ever finalized before she disappeared? A. No. We were waiting for the custody, and she had to go through mediation with that first. Q. All right. Do you know what the custody arrangements for Elijah were supposed to be following the divorce once it was going to be final? A. From what we -- her and I were both told, it had to be 50/50. That's the State of Florida. Q. So your understanding -- and to your knowledge, Ninth Judicial Cireuit Court Reporting Services24 25 hers -- was that after the divorce it would still be 50/50? A. Yes. Q. All right. At some point in your life and your observations between Nicole and her husband, did you become aware of some specific acts of violence by Christopher Otero-Rivera on your daughter? MS. PEREZ: Your Honor, I'm going to object. May we approach? THE COURT: Well, I mean, it's -- we don't have a jury here. MS. PEREZ: Well -- (At the bench.) MS. PEREZ: (Inaudible.) COURT REPORTER: Judge, can you put the bench mics on? Thank you. MS. PEREZ: I think that's just a broad, open question if we're here for similar-fact evidence. The State has identified 2016, 2018. I read her -- some of her statements she made allude to a whole bunch of other stuff. So we're here for similar-fact evidence. THE COURT: Okay. Well, we don't have a jury here. MS. PEREZ: Oh, okay. Well, the witness is on the stand. The witness is on the stand. THE COURT: I mean, we'll -- I'll let her give -- Ninth Judicial Cireuit Court Reporting Services 3324 25 paint the broad picture, and then the State can make argument as to the specific acts they're asking. MS. PEREZ: I'm sorry, Judge. The second concern is change of venue is an issue for the defense, and we are trying to -- I know the Court's going to attempt to get a jury in this particular county. We have a television camera here. She's going to make all these statements. This is being broadcasted. And so if this is about similar-fact evidence, I think we still need to at least limit it down to 2016. She may go into all these other instances that never were recorded that we -- I don't know what she's going to say, but I just think -- I'm concerned about the fact that we have a camera in here, and she's going to start saying all these things. THE COURT: So what's -- what's the relevance of other acts other than what you're seeking to introduce? MR. WILLIAMS: There is none, which is why I'm not going to ask her about any -- THE COURT: Okay. MR. WILLIAMS: My question was specific acts. So I'm going to lead her to -- THE COURT: Right. So you're going to have to allow some leading questions on this. Ninth Judicial Cireuit Court Reporting Services 3424 25 35 MS. PEREZ: Well, I think it was broad, so -- THE COURT: Okay. Well. MS. PEREZ: -- if he's going to be specific -- THE COURT: All right. Okay. (In open court.) MR. WILLIAMS: May I proceed, Your Honor? THE COURT: You may. BY MR. WILLIAMS: Q. So, Ms. Montalvo, did you become aware of two specific acts of violence, personally aware, that he committed upon her? A. Yes, I did. Q. All right. So I'd like to direct your attention specifically to the night of June 6th of 2016. Do you remember becoming aware of such an incident that night? A. Yes, I do. Q. Now, how did you first become aware on that night that there had been an incident between your daughter and Mr. Otero-Rivera? A. The house phone rang and I answered and it was a girl. She asked if I was Nicole's mother. I said yes. And she said, you need to come pick Nicole up. I'm gonna put her on the phone. Chris beat her up. Q. Okay. Where were -- where were you when you got that message? You were at home? Ninth Judicial Cireuit Court Reporting Services24 25 36 A. I was at my house, yes. Q. All right. Now, at that time, did you know where your daughter was living, Nicole? A. Not specific. I knew the area that she was in. Q. Why didn't you know where she was living at the time? A. Because we weren't allowed to have contact with her. Q. Who made that decision? A. Christopher. Q. Okay. Now, did you speak to Nicole briefly -- don't tell me what she said, but did you speak to her briefly over the phone? A. Yes, I did. Q. So could you hear her voice? A. Yes. Q. And what was her demeanor like when you spoke to her over the phone? A. She was crying. She was scared. She was begging me to come -- I'm sorry. Q. I didn't hear what you said. A. She was crying. She was scared. Q. And I'm going to ask you to try to elevate your voice a little bit. Okay? A. Yes. Okay. She was crying and she was scared Ninth Judicial Cireuit Court Reporting Services24 25 and she was hurt. Q. Now, in that limited moment on the phone with that demeanor, what did she tell you over the phone? A. She told me that Chris beat her up and took off with the car and to come get her, and she gave me the address to the house. Q. Okay. So what did you do after you got the address and had this brief conversation with Nicole Montalvo? A. I told Nicole and also the girl that had called originally, Brittany, I told them both to call 911. I hung up the phone and then I called 911. Q. Were you traveling while you were on the phone with 911? A. Yes. Q. And so were you going to her residence or the address that she gave you? A. Yes. And -- Q. Did anybody go with you? A. Pardon me? Q. Did anyone go with you to that address? A. My husband was with me. I woke him up because he was sleeping when the call came through. MR. WILLIAMS: Your Honor, may I approach the witness with what's been marked as State's Exhibit A Ninth Judicial Cireuit Court Reporting Services 3724 25 38 and shown to counsel? THE COURT: You may. MR. WILLIAMS: No objection. BY MR. WILLIAMS: Q. Ms. Montalvo, I'm going to show you State's Exhibit A. It's a disc. Do you recognize that disc? A. Yes. Q. And what do you recognize on the disc? A. It's my signature, my initials, and the date. It's a 911 call. Q. All right. Did you have an opportunity to listen to the contents of this disc? A. Yes, I did. Q. And what's contained on the contents of the disc? A. It's me reporting that Nicole needed help, and we needed the police and the ambulance to show up at the house and that Chris had taken off in the car. He was not supposed to be at the house. Q. So this is your 911 call? A. Yes. Q. Does it -- does the call -- the audio on this disc fairly and accurately represent the call that you made on the night of June 6th? A. Yes. MR. WILLIAMS: At this time, we'd ask the Court Ninth Judicial Cireuit Court Reporting Services24 25 to admit State's A as State's 1 for purposes of the hearing. (Attorneys conferring.) MR. WILLIAMS: Judge, I believe counsel and I have a stipulation that we'll admit State's Exhibit 1 but ask the Court to listen to it in chambers as opposed to in the courtroom. THE COURT: That's fine. All right. Is that correct? MS. PEREZ: Yes, Your Honor. THE COURT: State's Exhibit A for identification will be received as State's Exhibit 1 in evidence. (State's Exhibit 1 received in evidence.) BY MR. WILLIAMS: Q. So eventually that night did you arrive at the residence where Nicole was located? A. Yes, we did. Q. Who was present when you actually arrived? A. When we arrived, the police officer was already there. And there was a girl named Brittany and another -- I don't know who the gentleman was; I think it was her husband -- and Nicole. Q. When you say "her husband," you mean Brittany's husband? A. Brittany's husband, yes. Ninth Judicial Circuit Court Reporting Services 3924 25 Q. Okay. A. And Nicole. Q. So did you have an opportunity to observe Nicole when you arrived at the residence? A. Yes, I did. Q. And what type of residence was it? A house, a -- A. It was a house. Q. All right. A. They were renting. Q. So can you describe any injuries or can you just better describe physically, Ms. Montalvo, when you observed her when you arrived that night? A. As soon as we arrived, Nicole came out and she had -- she had a big bruise, redness, on her forehead that was already swelling. She was crying. Her shirt was ripped. She had bruises on her, and she was really scared and really hurt and upset. MR. WILLIAMS: May I approach the witness with what's been marked as State's B for purposes of the hearing? THE COURT: You may. MR. WILLIAMS: Previously shown to defense counsel. BY MR. WILLIAMS: Q. And, Ms. Montalvo, I'm showing you State's Ninth Judicial Cireuit Court Reporting Services 4024 25 Composite Exhibit B. It's five photographs. Do you recognize those photographs? A. Yes, I do. Q. And have you had an opportunity, a few minutes before this hearing, to look at those photos? A. Yes. Q. And what do you recognize them to be? A. They are the night that we went to the house to pick up Nicole. Q. They are photographs of Nicole Montalvo? A. Yes, they are. Q. And do their fairly, accurately -- fairly and accurately depict the way your daughter Nicole looked on the night of June 6th, 2016? A. Yes. MR. WILLIAMS: At this time, I would ask the Court to admit State's Exhibit B as State's 2. MS. PEREZ: We have no objection. THE COURT: There being no objection, State's Exhibit B will be received as State's Composite Exhibit 2. (State's Exhibit 2 received in evidence.) MR. WILLIAMS: And if it's okay with defense counsel, I'll just hand the exhibit to the Court for review -- Ninth Judicial Cireuit Court Reporting Services 4l24 25 42 THE COURT: Okay. MS. PEREZ: No objection. MR. WILLIAMS: -- finder of fact. THE COURT: Thank you. MR. WILLIAMS: Yes, your Honor. BY MR. WILLIAMS: Q. So you've described your daughter. Did you have a chance to look around the residence? A. Yes. I actually went inside while the police were taking Nicole's statement and the ambulance was there. So I actually went inside to collect some belongings for her. Q. And what did you observe? A. As soon as I walked into the house, there was a wooden baby gate that was leaning up against the wall, and it was, like, completely mangled. Everything -- it was falling apart. There was holes all through the walls. The coffee -- the kitchen table was turned upside down. There was a vacuum cleaner hose that was, like, thrown across the floor. There was just -- it looked like there was a fight. Q. The house was in disarray; is that fair? A. Yes, correct. Q. Okay. And you said law enforcement was already present and took a statement from your daughter that night, Ninth Judicial Cireuit Court Reporting Services24 25 correct? A. Yes. My husband stayed outside with the law enforcement and Nicole, and I went inside with Brittany to try to get Elijah's clothes and Nicole's clothes so I could take her home. Q. So when you arrived at the scene, did you have another conversation with your daughter Nicole? A. Yes. Q. How long did it take you to get from your residence where you got the initial call to the residence where she was located? A. It was probably between 15 and 20 minutes from the actual phone -- first phone call because I was on the phone with 911 also. Q. All right. And how long after you arrived did this conversation with Nicole occur? A. Immediately, as soon as we got out of the car. Q. So you spoke to her before you went inside the house and looked around? A. Yes. Q. All right. What was her demeanor like when you met her in person? A. She was crying and she was scared. Q. Same demeanor as you experienced on the phone? A. Yes. Ninth Judicial Circuit Court Reporting Services 4324 25 44 Q. All right. Did she tell you what happened while she was in that state and arrived face-to-face? A. She told me that her -- Q. Did she tell you what happened? A. Yes, she did. Q. What did she tell you happened? A. She told me that her and Chris got into a fight; that she took a beer out of the fridge, and Chris headbutted her. And he pushed her up against the wall and put her face through the wall. He took the baby gate and hit her with the baby gate all up and down her back and her side, and he pulled her by her hair through the house. And -- and he -- she was calling -- she was getting scared and everything, and he got in the car and he left. Q. Okay. So was Mr. Otero-Rivera on scene when you arrived? A. No. Q. Did you eventually have contact with Elijah that night? A. Yes. We went to pick up Elijah because he was supposed to be at his aunt's house. We went to get him there, and he wasn't there because Chris had already taken him. Q. All right. Where was he when you made contact with him? Ninth Judicial Cireuit Court Reporting Services24 25 45 A. He came -- Wanda, Chris' mother, finally brought Elijah to my house at, like, 5 in the morning. Q. So Wanda Rivera delivered Elijah to your house? A. Yes. Q. Okay. Now, at some point after this incident that you just described, did your daughter Nicole separate from Mr. Otero-Rivera? A. Yes. She stayed with us for a while, and then she went back to Chris. Q. So then fast forwarding now to October of 2018, did you become aware of a second incident where there was violence between -- or by Christopher Otero-Rivera on your daughter Nicole? A. Yes. Q. So I'm gonna go now to October 3rd, early morning hours of October 4th of 2018. How did you first become aware that night that there had been an incident between Nicole and Christopher? A. Well, at that time, Nicole and Chris -- Nicole and Elijah were actually living with us again. Q. Okay. A. And she had already separated from -- or left Chris. So Elijah stayed with us in the evenings when Nicole went to work. So she was -- she came home from work and she -- I was in my office watching TV, and she walked Ninth Judicial Cireuit Court Reporting Services24 25 46 into the doorway. And I could just tell something happened. Q. All right. So what did -- describe what you actually saw. You said you could tell something happened. What was her demeanor like? Start with that, please. A. As soon as -- she just stood in the doorway. She was holding herself like this, trying to hold her shirt. THE COURT: I'm sorry, holding herself like what? THE WITNESS: I'm sorry. She was holding herself like this -- BY MR. WILLIAMS: Q. -- arms crossed -- A. -- trying to hold her -- Q. -- with her hand on the opposite shoulder? A. Yes. And she was trying to hold her shirt together because her entire shirt buttons were ripped off and it was ripped. So she was holding -- her hair was all messed up. She had, like, stuff in her hair, like twigs and branches or leaves. And her face, her mouth was all bloody. She had dried blood and it was swollen, and she was crying and shaking. Q. So did she tell you what happened when you saw her like that -- A. Yes. Q. -- that night? Ninth Judicial Cireuit Court Reporting Services24 25 A. Yes. Q. What did she say? A. She told me that Chris and Toni Rocker jumped her -- and -- or Chris and Toni took her, kidnapped her, and took her out to Poinciana and tried to kill her. Q. All right. Was anybody else in the house that night? A. Yes. Q. Who else was present -- A. My -- Q. -- that night when she got home? A. My husband was home sleeping. My youngest daughter Christina was home, and Elijah was home. Q. And you said Nicole was living with you, right? A. Yes, she was. Q. All righ