Stephen Downing — Direct/Cross/Redirect

MR. ZANGENEH: Judge, at this time, Mr. Garcia asks for judgment of acquittal as to all three counts: murder in the first degree, solicitation of murder, and conspiracy to commit murder.

MR. ZANGENEH: We believe that no reasonable juror can come back with a finding of guilt, based on the fact that all the evidence that pertains to these specific charges — the solicitation, the conspiracy, and the first-degree murder charge — are elicited by Luis Rivera, which is undoubtedly one of the least credible witnesses that I've seen testify in any proceeding.

MR. ZANGENEH: He has inconsistent variations of story after story.

MR. ZANGENEH: There is documentation showing that he is the person that rents the Prius. He is the person whose firearm is used in the murder.

MR. ZANGENEH: Yet he is the only person that alleges that my client was involved in this. Now, I know the government has a circumstantial case.

MR. ZANGENEH: But there's nothing to show a jury that my client wasn't simply an uninvolved, an innocent conspirator, or an innocent third party in a conspiracy. Simply merely being present at the place of a crime that in some way acts in further so that crime doesn't make you a potential conspirator. The only evidence that the government has that solidifies their position is through Mr. Rivera, and we believe that based on his substantial amount of inconsistencies, as well as his — I would say refusal to answer our questions with regards to his gang affiliation and our questions with regards to the Latin King organization, that no reasonable juror can come back with the project.

MS. KAWASS: Your Honor, on behalf of Ms. Magbanua, at this time, since the State has rested, we renew all previous motions and objections, and at this time make our first motion for judgment of acquittal as to all three counts in the case.

MS. KAWASS: The Court is aware that the standard at this point is, of course, to take the evidence in the light most favorable to the State, and it is our position that even at this point they have failed to establish a prima facie case of guilt against Ms. Magbanua. This is a purely circumstantial case. According to Earhart, direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact.

MS. KAWASS: Circumstantial evidence is evidence which involves an additional inference to prove the material fact.

MS. KAWASS: It is our position that this is a completely circumstantial case, because Mr. Rivera's testimony requires inference upon inference in order to establish certain elements of the crime. For example, one of the elements in the first count, which is where they're charging her as a principal to a first degree murder, the State has to prove that Ms. Magbanua knew that a murder was going to be committed and that she did something to assist.

MS. KAWASS: The only testimony that they have at this point is from Mr. Rivera, who was impeached not only by direct evidence and records, but also by his own statements. And he essentially is stating — he also testified, sorry, Your Honor — that he had no communication with my client, Ms. Magbanua, before, and that all of this information was coming through Mr. Garcia. So at this point they don't have any evidence, number one, that she knew that a murder was going to be committed, or that she did anything to assist in that event. And —

MS. KAWASS: I suppose the Court is very well aware of circumstantial standards. When the evidence of a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. When circumstantial evidence is relied upon for a conviction, the circumstances, when taken together, must lead to a reasonable and moral certainty that the accused and no one else committed the offense.

MS. KAWASS: And then in relation to that, Your Honor, as to the conspiracy count: conspiracy exists when there is an express or implied agreement between two parties. The only direct evidence that the State gave in that respect was that there is phone communication between people who they don't have probable cause to arrest and my client. We have also presented evidence of a reasonable explanation that is not one of guilt, which is that she was communicating with her boyfriend as well as Mr. Garcia.

MS. KAWASS: They admit that they do not have the contents of those conversations, and not even Mr. Rivera, who claims that he found out that it was a murder on the drive up. So there is no evidence, direct evidence or otherwise, of any agreement between anyone for her to commit murder, in order to establish the conspiracy element of the murder. And then we also — the same argument I would say as to the solicitation, Your Honor, because solicitation then has the commanding, hiring, requesting or encouraging another person to commit the crime. Mr. Rivera testified that he had never spoken to her, and everything that he said came across more so as a guessing game from Mr. Rivera — Mr. Rivera saying she's behind the whole thing. These were all conclusory statements that weren't based on any direct evidence. And the case that I would have the Court turn its attention to, that we are relying on in terms of how the court is to handle this type of evidence, we're relying on Rocker v. State. It's a case that I relied on in the earlier hearing. It's 122 So. 3d 898, and that's R-O-C-K-E-R, and that's from the Second DCA from 2013.

MS. KAWASS: Thank you, Judge.

MR. DECOSTE: Your Honor, if we can add one thing, Your Honor.

MS. KAWASS: And also to bring to the Court's attention, I'm looking at a copy of Ms. Magbanua's charging document, and they did not charge her as a principal. There's been no evidence in this case whatsoever that Ms. Magbanua was even in Tallahassee when Mr. Markel was killed, and the State has presented no evidence that she was the one that killed him. And that's why they haven't charged her as a principal, Your Honor. So they have no evidence of that.

MR. ZANGENEH: Could you just give me a second? Mr. Diaz is taking that position with one of our potential witnesses in the county case.

MR. ZANGENEH: It's going to be — he's now, he used to be Trooper Downing, now he's Sergeant Downing.

MR. ZANGENEH: I'm not going to call him.

MR. ZANGENEH: Fifteen minutes, please.

MR. ZANGENEH: Yes, sir. And I believe the second witness the defense intends to call is Mr. Sawicki.

MR. ZANGENEH: Oh, absolutely. We have no objection.

MR. ZANGENEH: Mr. Garcia calls — it's Sergeant now, right? Sergeant Downing, please.

MR. ZANGENEH: State your name and occupation to the jury.

MR. ZANGENEH: And how long have you been with the Florida Highway Patrol, sir?

MR. ZANGENEH: And what current capacity do you have with Florida Highway Patrol?

MR. ZANGENEH: And were you working with Florida Highway Patrol, I believe as a corporal, in 2000 — I'm sorry, I don't know what your title was. But were you with Florida Highway Patrol in June of 2014?

MR. ZANGENEH: And what area would you be working in during that time period?

MR. ZANGENEH: Is it 81?

MR. ZANGENEH: And up here. Or Trooper S.M.D., is that correct, sir?

MR. ZANGENEH: And that's your badge number right there, your ID number, 3004?

MR. ZANGENEH: And is it fair to say that when you become a member of law enforcement with Florida Highway Patrol, you get designated a badge number for identification purposes?

MR. ZANGENEH: And that was your identification number?

MR. ZANGENEH: And so on June 4th — which I believe is what the — let's go ahead and take a look at the citation. On June 4th, 2014, at 9:12 a.m. That's what it says right there. Is that correct, sir?

MR. ZANGENEH: You pulled over a 2011 Hyundai, four-door, multicolor. Is that correct, sir?

MR. ZANGENEH: And who did you indicate was the driver of this vehicle?

MR. ZANGENEH: And you obtained that information because when you pulled the vehicle over, there was somebody in the driver's seat, correct?

MR. ZANGENEH: And you go over to them and you go, can I get your license and registration, and things to that effect?

MR. ZANGENEH: Okay. And Mr. Rivera gave you, I assume, a driver's license?

MR. ZANGENEH: And that information is what's reflected in the name, street, city portion of the citation, correct?

MR. ZANGENEH: And that's citation A-2-6, V as in Victor, Q as in Quiche, M as in Mary, E as in Evelyn.

MR. ZANGENEH: Okay. Okay.

MR. ZANGENEH: Now, it also says that Mr. Rivera's date of birth is April 25th, 1983. You didn't guess that, did you?

MR. ZANGENEH: And where it says race, you put an H. I assume that's Hispanic, sir?

MR. ZANGENEH: And he's a male, correct?

MR. ZANGENEH: Okay. And this, I assume, is on his license — it says five foot four, correct?

MR. ZANGENEH: You didn't take him out of the car and measure him, did you?

MR. ZANGENEH: Okay. Now, there's also some additional information.

MR. ZANGENEH: You made this observation, wrote down the license plate, and memorialized this in the citation, correct?

MR. ZANGENEH: Then the citation you gave him was going 90 miles an hour in a 70, correct?

MR. ZANGENEH: Now, what you're going to write there, correct? A companion citation would be an additional one, right? And was there one there?

MR. ZANGENEH: What was he driving? Was that a motorcycle?

MR. ZANGENEH: Was this a commercial vehicle?

MR. ZANGENEH: Okay. So you issued the citation, correct?

MR. ZANGENEH: Now, would it be fair to say that law enforcement — that they do traffic stops, which is a lot of what Florida Highway Patrol officers do? It's not all you do, but it's a decent amount of the work that you do?

MR. ZANGENEH: Would it be fair to say that you guys are trained in making an observation for impairment?

MR. ZANGENEH: Okay. And can you tell the members of the jury what kind of training you have to determine impairment?

MR. ZANGENEH: Now, I assume, because there's no accompanying arrest for DUI or driving under the influence of alcohol and/or drugs, that you didn't see anything that would trigger — concern you as to whether or not the driver had been consuming drugs at all, correct?

MR. ZANGENEH: Mr. Rivera, it shows he's from Miami Beach, correct?

MR. ZANGENEH: Okay. And if you ran the license of the vehicle at all, did it show you that it was a rental car out of Miami?

MR. ZANGENEH: And at any point, did you suspect Mr. Rivera to be under the influence of alcohol?

MR. ZANGENEH: One of the things that in your training as a Florida Highway Patrol officer — do they talk to you about levels of impairment?

MR. ZANGENEH: So you know the difference between someone having one drink or twelve drinks, right?

MR. ZANGENEH: Now, what about with other narcotics? Did they tell you about what the distinction is between — I'm going to use a very common term here — a bump of cocaine. Do you know what that is?

MR. ZANGENEH: And that's when someone puts a little bit of cocaine on a key and uses that as a vehicle to consume the cocaine, correct?

MR. ZANGENEH: Do you know how much five grams of cocaine is?

MR. ZANGENEH: So if I told you that someone had consumed five grams of cocaine in a five-hour period, would you agree with me that there would be substantial telltale signs of that kind of impairment?

MR. ZANGENEH: And you'll agree with me that if someone is doing cocaine inside a car that if they are doing it during that short period of time with that amount of consumption, that there would potentially be traces of cocaine all over their clothing, or on the seat next to them, or maybe just all in places of plain view that you could see, correct?

MR. ZANGENEH: Do you see any of that in this case?

MR. ZANGENEH: But if you did, you would have done something about it, right? And back then you were just a trooper. Now, trooper, right?

MR. ZANGENEH: And now you're a sergeant, correct?

MR. ZANGENEH: Which means you've been promoted from trooper. What's the next — what do you go from trooper to?

MR. ZANGENEH: Corporal, and then from corporal to sergeant, correct? And you don't get these kind of promotions if you're making these kind of rookie mistakes, right?

MR. ZANGENEH: Now, other than issuing the citation that day, how long would you say that you had, if you recall, your car pulled over?

MR. ZANGENEH: Three to five minutes. So not an exorbitant amount of period, right?

MR. ZANGENEH: Not like you stopped them and they had to stay there for an hour or two because drug dogs got called or anything like that. None of that stuff happened, right?

MR. ZANGENEH: Now, as a Florida Highway Patrol officer, there's something called the dash camera. Are you familiar with that?

MR. ZANGENEH: Okay. A dash camera is something that's — can you tell the jury what the dash camera is?

MR. ZANGENEH: Okay. And are you aware, or since it was your vehicle, if the State Attorney's Office or the FBI or any other arm of law enforcement wanted to get a copy of that, they wouldn't send a subpoena to you, right? It would go to the records department?

MR. ZANGENEH: Okay, are you familiar with how the records department works?

MR. ZANGENEH: Right, so you couldn't testify as to what the parameters are with regards to retrieving information, right? But you do know that in 2014, in June of 2014, there was a dash cam. All right.

MR. ZANGENEH: No further questions.

MR. DECOSTE: No cross, Your Honor.

MR. ZANGENEH: I'm going to object. When I asked him if he knew the specifics, he said no.

MR. ZANGENEH: Objection, Judge. Calls for speculation.

MR. ZANGENEH: Yeah. Sergeant Downing, I know what the prosecutor —

MR. ZANGENEH: Sergeant Downing, you know what the prosecutor just showed you, saying that that only applies to if you have over 60 passengers or not, right?

MR. ZANGENEH: That's not what you thought of when you wrote this ticket, right?

MR. ZANGENEH: Right. What you thought of was that there was no passengers, and that's what you wrote, correct?

MR. ZANGENEH: Okay. Okay, so let's see — do you recall taking a deposition in September of 2018, sir?

MR. ZANGENEH: You recall that Mr. DeCoste and myself were there, right?

MR. ZANGENEH: And I'm going to — Sergeant, it's now Sergeant — Downing's deposition.

MR. ZANGENEH: Page is 7, 17 to 22.

MR. ZANGENEH: We asked you — and "there might be a section on there that has passengers, I can't remember." I'm sorry, this is your answer. I'm sorry, let me go to 15 to 22, Judge. "So the note section — what part would be the part where it says other violations or comments pertaining to offense?" And you wrote, "There might be a section on there that has passengers, I can't remember. These are old electronic ones." Question: "Can you take a look?" And you took a look, and it says, "Yeah, it says no passengers, but that's why I have that mark." You recall that, sir?

MR. ZANGENEH: No further questions.