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Filing # 107581617 E-Filed 05/17/2020 03:34:03 PM
IN THE COUNTY COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR,
OSCEOLA COUNTY, FLORIDA, CRIMINAL
DIVISION
STATE OF FLORIDA, CASE NUMBER: 2019-CF-003738-A-OS
Plaintiff, DIVISION: 101
v.
CHRISTOPHER OTERO-RIVERA,
Defendant.
/
MOTION FOR RELEASE OF GRAND JURY TESTIMONY AND
INCORPORATED MEMORANDUM OF LAW
COMES NOW, MIGDALIA PEREZ, ESQUIRE, and hereby files this Motion to Reelase
Grand Jury Testimony of Jose Leopoldo Recinos pursuant to Florida Statute 905.27, Fifth and
Fourteenth Amendment of the U.S. Constitution, corresponding Florida Constitution and Giglio
v. United States, 405 U.S. 150 (1972), and as grounds in support thereof would assert the
following:
1. Otero-Rivera was charged by way of indictment with Second Degree murder pursuant
to Florida Statute s 782.04; Abuse of a Dead Human Body s 872.06; and Tampering
with Evidence s 918.13, on or about March 5, 2020.
2. On March 31, 2020 the State filed a Motion for Transcription of Grand Jury
Testimony
of several witnesses whom appeared before the Grand Jury, of particular importance
to this motion, Johnny Medina and Hector Massas. This Court granted the motion on
April 6, 2020.
3. Johnny Medina and Hector Massas were inmates incarcerated at the Osceola County
Jail during a period when defendant was incarcerated.
4. On March 4, 2020, Hector Massas testified before a Grand Jury wherein he indicated
that he was in regular contact with the defendant. He testified that “Johnny Medina,
Jose Recinos, and the defendant talked all the time about their wives because they all
had domestic violence cases.” He furthered alleged that he was “present all the time
with them and ... on two occasions, he said that when he get out from jail he wasgonna kill that bitch.” (Grand Jury Released Testimony pursuant to Court: April 6,
2020, pgs 6:3-25 & 7:7-24)
5. Johnny Medina also testified before the Grand Jury on March 4, 2020, wherein he
confirmed that for the “first five months of their (defendant and Medina)
incarceration we were pretty much were together all day, every day. We had our
seats set up together between me, him, Recinos. We would eat together at the same
table. Like that was pretty much, like, the inner circle between us.” He further
alleged discussions of threats to kill the decedent. (Grand Jury Released Testimony
pursuant to Court: April 6, 2020, pgs 15:20-25 & 17:1-3)
6. During the defense’s investigation it was discovered that Jose L. Recinos was
interviewed by law enforcement and pursuant to a subpoena appeared before the
Grand Jury in this cause on March 4, 2020 and gave testimony relevant to the
investigation in this cause.!
7. Otero-Rivera was charged by way of Indictment with Second Degree Murder, Abuse
of a Dead Human Body, and Tampering with Evidence for the homicide of Montalvo.
8. Because Medina and Massas will presumably be two of the State’s main witnesses
against the defendant, the defense is entitled to any and all Giglio information
tegarding whether or not Recinos statements are exculpatory to the defendant and
contradict those of Massas and Medina proving them to be false.
9. The transcript of Jose L. Recinos’s testimony is necessary to the defense prior to the
trial of this cause so that the testimony of the witness might be introduced pursuant to
Florida Statute section 90.801(2)(a).
10. The State is obligated pursuant to Brady v. Maryland and Florida Rules of Criminal
Procedure 3.220.
MEMORANDUM OF LAW.
The Florida Supreme Court has previously held that there is no pretrial right to
inspect grand jury testimony as an aid in preparing a defense. Jent v. State, 408 So.2d 1024,
1027 (Fla. 1981), cert denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). To
obtain grand jury testimony, a party must show a particularized need sufficient to justify the
! Oddly enough, the State did not disclose that Recinos was interviewed by law enforcement and that he appeared
pursuant to a subpoena before the Grand Jury. The State submitted Motion to release Grand Jury testimony but for
that of Recinos.
nvrevelation of the generally secret grand jury proceedings. See Dennis v. United States, 384
US. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966). Once a grand jury investigation
ends disclosure is proper when justice requires it. Id. at 870, 86 S.Ct. at 1849.
To determine whether a defendant has shown the particularized need that Dennis
tequires, the trial court has the discretion to conduct an in-camera inspection of the grand
jury testimony. Miller v. Wainwright, 798 F.2d 426 (11" Cir.1986), vacated and remanded,
480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed.2d. 513, reinstated, 820 F.2d 1135 (11" Cir.1987)
639 So.2d at 600. See also State v. Pleas, 659 So.2d 700 (Fla. 1st DCA 1995)(granting
certiorari and quashing order that required disclosure of grand jury testimony because
defendant failed to make strong showing of particularized need as required for disclosure of
grand jury minutes or witness list); State v. Meeks, 610 So.2d 647 (Fla. 3 DCA 1992)
(granting certiorari and quashing an order requiring disclosure of grand jury testimony as the
defendant’s motion seeking disclosure was based on mere surmise or speculation).
In the case at bar, there is a strong particularized need for disclosure of Jose
Leopoldo Recinos Grand Jury testimony in relation to the indictment. Both Medina and Massas
testified that all four (defendant, Massas, Medina, and Recinos) were like “inner circle between
us.” Both testified to alleged threats to kill the victim in this matter. It would be fair to assume
that Recinos would have testified similarly. Oddly enough, the State never disclosed information
that Recinos was contacted by law enforcement, interviewed by law enforcement, and/or testified
before the Grand Jury.
The State has a heightened obligation to disclose perjured or false testimony and
has an obligation to not utilize such perjured testimony. Deliberate deception of a court or
jurors, including a grand jury, with the presentation of false evidence is “incompatible with
rudimentary demands of justice.” Giglio v. U.S., 405 U.S. 150, 154 (1972). In Napue v. Illinois,
360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), we said, ‘[t]he same result obtains when the
State, although not soliciting false evidence, allows it to go uncorrected when it appears.’ Id., at
269, 79 S.Ct., at 1177. Thereafter Brady v. Maryland, 373 U'S., at 87, 83 S.Ct., at 1197, held
that suppression of material evidence justifies a new trial ‘irrespective of the good faith or bad
faith of the prosecution.’ See American Bar Association, Project on Standards for Criminal
Justice, Prosecution Function and Defense Function s 3.11(a). When the ‘reliability of a given
witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affectingcredibility falls within this general rule, Napue, supra, at 269, 79 S.Ct., at 1177.
"For good reasons, rooted in long experience, courts have shielded grand jury
proceedings from unnecessary exposure. This tradition of the law is not to be abandoned without
clear legislative direction. This is not to suggest, however, that in a case of ‘particularized need!
the secrecy of grand jury testimony may not be ‘lifted discretely and limitedly.' United States v.
Procter & Gamble Company, 356 U.S. 677, 78 S. Ct. 983, 987, 2 L. Ed. 2d 1077. When the
circumstances seem to the Judge appropriate, he may make such inspection without necessarily
requiring a prior showing of inconsistency. United States v. Spangelet, 258 F.2d 338.
Thus, the balancing of Florida Statute 905.27 and F.R. Crim. P.3.220, clearly tips the
scales of justice in favor of the rudimentary demands of a fair trial and due process, pursuant to
the Fifth and Fourteenth Amendments, and corresponding Article, section 9 of the Florida
Constitution.
WHEREFORE, the defendant CHRISTOPHER OTERO-RIVERA, through his
under-
signed attorney, moves this Court to release the Grand Jury Testimony of Jose L Recinos that
lead to the indictment of Otero-Rivera and that such testimony be transcribed and provided to the
undersigned counsel of record. The undersigned counsel will provide said testimony to counsel
for Defendant, Angel L. Rivera, in Osceola County case number 2019-CF-004126-OS. Further
that the Court should order that the Court Reporter not disclose the transcript to any other
persons.
MIGDALIA PEREZ
Attorney for Christopher Ortero-Rivera
Florida Bar No.: 696307By:
KIMBERLY A. LASURE
Florida Bar No.: 883751
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been E-
Filed thru E-file Portal System to the Office of the State Attorney, rwilliams(@sa05.org:
and FJB@Bankowitzlaw.com, on this 16" day of May, 2020.
By:
By:
a
Js A Bet, he BAL me
oO
MIGDALIA PEREZ
Attorney for Christopher Ortero-Rivera
Florida Bar No.: 696307
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
mperez@perezlasurelaw.com
KIMBERLY A. LASURE
Florida Bar No.: 883751
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
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Filing # 107581617 E-Filed 05/17/2020 03:34:03 PM IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR, OSCEOLA COUNTY, FLORIDA, CRIMINAL DIVISION STATE OF FLORIDA, CASE NUMBER: 2019-CF-003738-A-OS Plaintiff, DIVISION: 101 v. CHRISTOPHER OTERO-RIVERA, Defendant. / MOTION FOR RELEASE OF GRAND JURY TESTIMONY AND INCORPORATED MEMORANDUM OF LAW COMES NOW, MIGDALIA PEREZ, ESQUIRE, and hereby files this Motion to Reelase Grand Jury Testimony of Jose Leopoldo Recinos pursuant to Florida Statute 905.27, Fifth and Fourteenth Amendment of the U.S. Constitution, corresponding Florida Constitution and Giglio v. United States, 405 U.S. 150 (1972), and as grounds in support thereof would assert the following: 1. Otero-Rivera was charged by way of indictment with Second Degree murder pursuant to Florida Statute s 782.04; Abuse of a Dead Human Body s 872.06; and Tampering with Evidence s 918.13, on or about March 5, 2020. 2. On March 31, 2020 the State filed a Motion for Transcription of Grand Jury Testimony of several witnesses whom appeared before the Grand Jury, of particular importance to this motion, Johnny Medina and Hector Massas. This Court granted the motion on April 6, 2020. 3. Johnny Medina and Hector Massas were inmates incarcerated at the Osceola County Jail during a period when defendant was incarcerated. 4. On March 4, 2020, Hector Massas testified before a Grand Jury wherein he indicated that he was in regular contact with the defendant. He testified that “Johnny Medina, Jose Recinos, and the defendant talked all the time about their wives because they all had domestic violence cases.” He furthered alleged that he was “present all the time with them and ... on two occasions, he said that when he get out from jail he wasgonna kill that bitch.” (Grand Jury Released Testimony pursuant to Court: April 6, 2020, pgs 6:3-25 & 7:7-24) 5. Johnny Medina also testified before the Grand Jury on March 4, 2020, wherein he confirmed that for the “first five months of their (defendant and Medina) incarceration we were pretty much were together all day, every day. We had our seats set up together between me, him, Recinos. We would eat together at the same table. Like that was pretty much, like, the inner circle between us.” He further alleged discussions of threats to kill the decedent. (Grand Jury Released Testimony pursuant to Court: April 6, 2020, pgs 15:20-25 & 17:1-3) 6. During the defense’s investigation it was discovered that Jose L. Recinos was interviewed by law enforcement and pursuant to a subpoena appeared before the Grand Jury in this cause on March 4, 2020 and gave testimony relevant to the investigation in this cause.! 7. Otero-Rivera was charged by way of Indictment with Second Degree Murder, Abuse of a Dead Human Body, and Tampering with Evidence for the homicide of Montalvo. 8. Because Medina and Massas will presumably be two of the State’s main witnesses against the defendant, the defense is entitled to any and all Giglio information tegarding whether or not Recinos statements are exculpatory to the defendant and contradict those of Massas and Medina proving them to be false. 9. The transcript of Jose L. Recinos’s testimony is necessary to the defense prior to the trial of this cause so that the testimony of the witness might be introduced pursuant to Florida Statute section 90.801(2)(a). 10. The State is obligated pursuant to Brady v. Maryland and Florida Rules of Criminal Procedure 3.220. MEMORANDUM OF LAW. The Florida Supreme Court has previously held that there is no pretrial right to inspect grand jury testimony as an aid in preparing a defense. Jent v. State, 408 So.2d 1024, 1027 (Fla. 1981), cert denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). To obtain grand jury testimony, a party must show a particularized need sufficient to justify the ! Oddly enough, the State did not disclose that Recinos was interviewed by law enforcement and that he appeared pursuant to a subpoena before the Grand Jury. The State submitted Motion to release Grand Jury testimony but for that of Recinos. nvrevelation of the generally secret grand jury proceedings. See Dennis v. United States, 384 US. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966). Once a grand jury investigation ends disclosure is proper when justice requires it. Id. at 870, 86 S.Ct. at 1849. To determine whether a defendant has shown the particularized need that Dennis tequires, the trial court has the discretion to conduct an in-camera inspection of the grand jury testimony. Miller v. Wainwright, 798 F.2d 426 (11" Cir.1986), vacated and remanded, 480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed.2d. 513, reinstated, 820 F.2d 1135 (11" Cir.1987) 639 So.2d at 600. See also State v. Pleas, 659 So.2d 700 (Fla. 1st DCA 1995)(granting certiorari and quashing order that required disclosure of grand jury testimony because defendant failed to make strong showing of particularized need as required for disclosure of grand jury minutes or witness list); State v. Meeks, 610 So.2d 647 (Fla. 3 DCA 1992) (granting certiorari and quashing an order requiring disclosure of grand jury testimony as the defendant’s motion seeking disclosure was based on mere surmise or speculation). In the case at bar, there is a strong particularized need for disclosure of Jose Leopoldo Recinos Grand Jury testimony in relation to the indictment. Both Medina and Massas testified that all four (defendant, Massas, Medina, and Recinos) were like “inner circle between us.” Both testified to alleged threats to kill the victim in this matter. It would be fair to assume that Recinos would have testified similarly. Oddly enough, the State never disclosed information that Recinos was contacted by law enforcement, interviewed by law enforcement, and/or testified before the Grand Jury. The State has a heightened obligation to disclose perjured or false testimony and has an obligation to not utilize such perjured testimony. Deliberate deception of a court or jurors, including a grand jury, with the presentation of false evidence is “incompatible with rudimentary demands of justice.” Giglio v. U.S., 405 U.S. 150, 154 (1972). In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), we said, ‘[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’ Id., at 269, 79 S.Ct., at 1177. Thereafter Brady v. Maryland, 373 U'S., at 87, 83 S.Ct., at 1197, held that suppression of material evidence justifies a new trial ‘irrespective of the good faith or bad faith of the prosecution.’ See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and Defense Function s 3.11(a). When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affectingcredibility falls within this general rule, Napue, supra, at 269, 79 S.Ct., at 1177. "For good reasons, rooted in long experience, courts have shielded grand jury proceedings from unnecessary exposure. This tradition of the law is not to be abandoned without clear legislative direction. This is not to suggest, however, that in a case of ‘particularized need! the secrecy of grand jury testimony may not be ‘lifted discretely and limitedly.' United States v. Procter & Gamble Company, 356 U.S. 677, 78 S. Ct. 983, 987, 2 L. Ed. 2d 1077. When the circumstances seem to the Judge appropriate, he may make such inspection without necessarily requiring a prior showing of inconsistency. United States v. Spangelet, 258 F.2d 338. Thus, the balancing of Florida Statute 905.27 and F.R. Crim. P.3.220, clearly tips the scales of justice in favor of the rudimentary demands of a fair trial and due process, pursuant to the Fifth and Fourteenth Amendments, and corresponding Article, section 9 of the Florida Constitution. WHEREFORE, the defendant CHRISTOPHER OTERO-RIVERA, through his under- signed attorney, moves this Court to release the Grand Jury Testimony of Jose L Recinos that lead to the indictment of Otero-Rivera and that such testimony be transcribed and provided to the undersigned counsel of record. The undersigned counsel will provide said testimony to counsel for Defendant, Angel L. Rivera, in Osceola County case number 2019-CF-004126-OS. Further that the Court should order that the Court Reporter not disclose the transcript to any other persons. MIGDALIA PEREZ Attorney for Christopher Ortero-Rivera Florida Bar No.: 696307By: KIMBERLY A. LASURE Florida Bar No.: 883751 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been E- Filed thru E-file Portal System to the Office of the State Attorney, rwilliams(@sa05.org: and FJB@Bankowitzlaw.com, on this 16" day of May, 2020. By: By: a Js A Bet, he BAL me oO MIGDALIA PEREZ Attorney for Christopher Ortero-Rivera Florida Bar No.: 696307 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 mperez@perezlasurelaw.com KIMBERLY A. LASURE Florida Bar No.: 883751 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920