IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FIFTH DISTRICT

CASE NO. 5D22-654

DANIEL LEIJA,

Appellant,

-vs-

STATE OF FLORIDA,

Appellee.

____________________________________________________________

INITIAL BRIEF OF APPELLANT

____________________________________________________________
_____________________________________________________

APPEAL FROM THE CIRCUIT COURT

IN AND FOR ORANGE COUNTY, FLORIDA
_____________________________________________________

Daniel Tibbitt
Daniel J. Tibbitt, P.A.
1175 NE 125TH Street
Suite 404
North Miami, FL 33161
(305) 384-6160
dan@tibbittlaw.com
Florida Bar No. 816361

Counsel for Appellant

 TABLE OF CONTENTS

PAGE

INTRODUCTION.......................................................................................... 1

STATEMENT OF THE CASE AND FACTS ................................................ 2

Trial ........................................................................................... 2

Postconviction Motion ............................................................ 3

1. Failure to Properly Object to Erroneous Jury

Instructions on Justifiable Use of Deadly Force That
Told Jury That a Defendant Who Unlawfully Entered
Another's Dwelling Was Presumed To Be Doing So
With the Intent to Commit an Unlawful Act Involving
Force or Violence, Which Negated the Sole Defense In
the Case .......................................................................... 3

2. Failure to Move To Suppress the Portions of

Defendant's Statement Made After He Inovked His
Miranda Rights ............................................................. 11

3. Failure to Move To Redact and Keep from the Jury

Portions of the Defendant's Statement Where the
Interrogating Detective Opines on His Guilt and
Denigrates His Self-Defense Claim ............................. 16

4. Failure to Introduce and Use a Legal Guardianship

Document Showing that Mayriani Gomez's Parents
Had Intended to Grant Legal Guardianship of Mayriani
to Daniel Leija's Parents, Showing Their Relationship
Was Far More Serious That She Acknowledged And
That Her Relationship With Her Parents Was Far More
Strained Than She Acknowledged.............................. 19

STANDARD OF REVIEW .......................................................................... 25

i
SUMMARY OF THE ARGUMENT ............................................................. 25

ARGUMENT .............................................................................................. 28

I. Counsel Provided Ineffective Assistance of Counsel In

Failing to Properly Object to Erroneous Jury Instructions on
Justfiable Use of Deadly Force That Told Jury That a
Defendant Who Unlawfully Entered Another's Dwelling Was
Presumed to Be Doing So With the Intent to Commit an
Unlawful Act Involving Force or Violence, Which Negated
the Sole Defense In the Case................................................ 28

II. Counsel Was Ineffective For Failing to Move to Suppress

the Portions of Defendant's Statement Made After He
Invoked His Miranda Rights.................................................. 36

III. Counsel Was Ineffective for Failing to Move to Redact and

Keep from the Jury The Portions of the Defendant's
Statement Where the Interrogating Detective Opines on His
Guilt and Denigrates His Self-Defense Claim ..................... 40

IV. Counsel Was Ineffective For Failing to Introduce and Use

a Legal Guardianship Document Showing that Mayriani
Gomez's Parents Had Intended to Grant Legal Guardianship
of Mayriani to Daniel Leija's Parents, Showing Their
Relationship Was Far More Serious Than She
Acknowledged And That Her Relationship With Her Parents
Was Far More Strained Than She Acknowledged .............. 45

CONCLUSION ........................................................................................... 49

CERTIFICATE OF SERVICE AND FONT ................................................. 50

ii
 TABLE OF CITATIONS
CASES PAGE(S)

Alvarez v. State,
890 So.2d 389 (Fla. 1st DCA 2004) .......................................................... 37

Arteaga v. State,
246 So.3d 533 (Fla. 2nd DCA 2018) .......................................................... 35

Bassallo v. State,
46 So.3d 1205 (Fla. 4th DCA 2010) ........................................................... 35

Butler v. State,
493 So.2d 451 (Fla. 1986) .................................................................... 5, 30

Davis v. United States,

512 U.S. 452 (1994) ............................................................................ 37, 38

Deviney v. State,
112 So.3d 57 (Fla. 2013) .......................................................................... 37

Eversole v. State,
278 So.3d 227 (Fla. 1st DCA 2019) ........................................................... 38

Jennings v. State,
123 So.3d 1101 (Fla. 2013) ...................................................................... 25

Jones v. State,
200 So.3d 80 (Fla. 5th DCA 2015) ............................................................. 35

Latif v. State,
711 So.2d 241 (Fla. 5th DCA 1998) ........................................................... 32

Leija v. State,
270 So.3d 1260 (Fla. 5th DCA 2019) ........................................................... 3

Mann v. State,
135 So.3d 450 (Fla. 5th DCA 2014) ........................................................... 30

iii
Many v. State,
756 So.2d 169 (Fla. 4th DCA 2000) ........................................................... 34

Martinez v. State,
761 So.2d 1074 (Fla. 2000) ................................................................ 41, 43

Martinez v. State,
933 So.2d 1155 (Fla. 3rd DCA 2006) ......................................................... 35

Miranda v. Arizona,
384 U.S. 436 (1966) ...........................................................................passim

Odeh v. State,
82 So.3d 915 (Fla. 4th DCA 2011) ....................................................... 41, 43

Orton v. State,
212 So.3d 377 (Fla. 4th DCA 2017) ........................................................... 32

Sparkman v. State,
902 So.2d 353 (Fla. 4th DCA 2005) ........................................................... 43

Spivey v. State,
45 So.3d 51 (Fla. 1st DCA 2010) .................................................. 15, 37, 38

State v. Owen,
696 So.2d 715 (Fla. 1997) ........................................................................ 37

Strickland v. Washington,
466 U.S. 668 (1984) .................................................................................. 25

Tumblin v. State,
29 So.3d 1093 (Fla. 2010) ........................................................................ 41

Walker v. State,
957 So.2d 560 (Fla. 2007) ........................................................................ 37

Wilder v. State,
40 So.3d 804 (Fla. 1st DCA 2010) .......................................... 13, 14, 15, 39

iv
Woody v. State,
745 So.2d 1033 (Fla. 2nd DCA 1999) ........................................................ 43

Wong v. State,
212 So.3d 351 (Fla. 2017) ........................................................................ 34

RULES

Florida Rule of Appellate Procedure 9.141 ..................................................... 36

Florida Rule of Criminal Procedure 3.850................................................passim

v
 IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FIFTH DISTRICT

CASE NO. 5D22-654

DANIEL LEIJA,

Appellant,

-vs-

STATE OF FLORIDA,

Appellee.

____________________________________________________________

AMENDED INITIAL BRIEF OF APPELLANT

____________________________________________________________
_____________________________________________________

APPEAL FROM THE CIRCUIT COURT

IN AND FOR ORANGE COUNTY, FLORIDA
_____________________________________________________

INTRODUCTION

This is an appeal from the denial, after an evidentiary hearing, of a

postconviction motion filed under Florida Rule of Criminal Procedure 3.850.

The record is referred to by “R. [page number]”. This brief corrects an error

in the certificate of service that caused a previously filed brief to be rejected.

1
 STATEMENT OF THE CASE AND FACTS

Trial.

Daniel Leija was indicted for one count of first-degree murder, three

counts of attempted first-degree murder, and one count of burglary of a

dwelling with assault or battery. (R. 32-35). He was alleged to have entered

the home of an ex-girlfriend, without permission, and stabbed four people,

killing one of them and injuring the other three. He went to trial and was

convicted and sentenced to life on each count, with the life sentence for the

completed murder run consecutive to the concurrent life sentences on each

of the other counts (two consecutive life sentences). (R. 42-54).

The trial facts are recounted in detail in the postconviction motion filed

below and will not be repeated in this brief. The Court is referred to the

postconviction motion. (R. 58-73). The specific facts relevant to each

postconviction claim will be discussed together with those claims.

After trial, Leija, through counsel, filed a direct appeal, which became

Fifth District Court of Appeals case 5D18-373. 1 The defense on direct appeal

1
Because the appellate briefs on the direct appeal were not included in the
Record in this case, but are germane to Ground I of the postconviction
motion filed below and Issue I of this brief because the lower court found that
issue could have been raised on direct appeal, the defense will be filing a
motion to have this Court take judicial notice of the briefs in the direct appeal
in this case, case 5D18-373.

2
raised two issues: That the trial court erred in denying a motion to suppress

Leija’s incriminatory statement to police on the basis that he was intoxicated

when he made it; and that the trial court erred in failing to grant a mistrial on

the basis of late discovery disclosure by the State. This Court per curiam

affirmed without a written opinion on direct appeal. Leija v. State, 270 So.3d

1260 (Fla. 5th DCA 2019). No issues raised in the postconviction motion

were raised on direct appeal.

Postconviction Motion.

Daniel Leija, through undersigned counsel, filed a timely Motion for

Postconviction Relief Pursuant to Florida Rule of Criminal Procedure 3.850.

(R. 55-92). It raised four grounds, summarized below:

1. Failure to Properly Object to Erroneous Jury

Instruction on Justifiable Use of Deadly Force That
Told Jury That a Defendant Who Unlawfully Entered
Another’s Dwelling Was Presumed to Be Doing So
With The Intent to Commit an Unlawful Act Involving
Force or Violence, Which Negated the Sole Defense
In the Case.

There was no dispute in this case that Leija entered the home of the

victims and ultimately stabbed and killed Marcos Alvarez-Jimenez (the first

degree murder charge) and stabbed and injured his ex-girlfriend Mayriani

3
Gomez, her mother Lorena Gomez, and her mother’s husband Ismael

Sanchez (the attempted first degree murder charges). He confessed to it,

he was arrested at their house in the immediate aftermath of the stabbings,

and all of the witnesses testified that he did it. The only question at trial was

why he did this, more specifically whether he acted in compliance with

Florida law on the justifiable use of force and was acting in self-defense

because he was invited to the home by Mayriani Gomez and then Marcos

Alvarez-Jimenez attacked him, after which he defended himself with a knife,

in the chaos stabbing not only Mr. Alvarez-Jimenez but the other three

victims, Ismael Sanchez after and because he joined in attacking Leija and

the two females by accident.

The trial court, in instructing the jury on justifiable use of force, told

them that “[a] person who unlawfully and by force enters or attempts to enter

another’s dwelling is presumed to be doing so with the intent to commit an

unlawful act involving force or violence”. (R. 1003). The only person who

was alleged to have unlawfully entered another’s home was Daniel Leija—

the incident took place in the shared home of all four named victims. Thus,

the jury was told by this instruction that they should presume that Leija was

there to commit an unlawful act involving force and violence, meaning that,

even if as the defense claimed the deceased victim Mr. Alvarez-Jimenez

4
started the physical altercation, the victim was legally entitled to do so due

to the Castle Doctrine. Giving this instruction, where the defendant is the

one in the alleged victim’s home and not vice versa, has repeatedly been

found to be error. See, e.g., Butler v. State, 493 So.2d 451, 453 (Fla. 1986)

(this instruction “would naturally lead a reasonable jury to conclude that the

victim had an abstract right to be armed and use force against the defendant”

and “improperly shifted the focus of the case from the applicability of the

defense of self-defense to the right of the victim to fight force with force” and

“virtually negated the defendant’s only defense, that of self-defense” and the

error in giving it was not harmless). See also cases collected in 3.850 motion

below, pp. 23-25 (R. 77-79).

At trial, the State specifically requested this instruction, for precisely

the reason that it has been consistently held to be inappropriate to give,

because it tells the jury that the victim could justifiably use force against the

defendant in the victim’s home. The prosecution argued “The defendant is

saying that he was attacked while he was in someone else’s home. This

explains that, even if that were true, then that person could possibly legally

have the right to attack them.” (R. 958-59).

When the State initially asked for this instruction, the defense said they

“wholeheartedly disagree with that” and when asked why said “This is the

5
castle doctrine. This talks about someone coming into your home and you

being able to use self-defense. It’s not—what they’re trying to show is the

opposite of what the statute actually is for.” (R. 957-58). The trial judge

asked why the instruction would not apply and the following dialogue

occurred.

MS. RENTZ [Defense attorney]: Judge, I was trying

to find some case law on that because, again, I
thought the intent of this statute was the castle
doctrine, someone entering into your home and
having the right to stand your ground within your own
home.
THE COURT: Well, that may be its common
understanding, but I think it may include more than
one behavior. It involves a person who’s attacked in
their home and then it involves a person who
unlawfully and by force enters another person’s
home, and the presumption that may be drawn from
that.
MS. RENTZ: Judge, I think that’s what it’s trying to
say. That if someone is coming into your home, that
you have the right to defense yourself because
they’re coming in unlawfully, and that you’re to
presume they’re coming in to commit an unlawful act
of violence.
THE COURT; Well, reading it carefully, it seems to
me that it may apply. There seems to be some
quantum of evidence with regards to it in section
776.013, so I’m inclined to give it.

(R. 959-60). The discussion then moved on and after talking about other jury

instructions defense counsel said “Judge, to go back, I’m trying to obviously

do the jury instructions and still research, I think I might have found a case

6
with that 776.013(4) [which is the instruction at issue]”. (R. 963). The judge

responded “I need to know because we’re past the appointed hour at this

point. We need to go ahead and move it along and get to closings.” (R. 963).

With no response from the defense, the judge continued “Okay. Well, let’s

move forward now.” and then started talking about other instructions. (R.

963). No further argument or objection was lodged by the defense, and none

of the on-point caselaw on this issue was cited. There were multiple

recesses and other arguments before the Court read the jury the instructions,

and the defense never revisited the issue. (R. 970-979). When the actual

instruction was read to the jury informing them that they should presume that

a person who unlawfully and by force entered the dwelling of another was

there to commit an unlawful act involving force and violence, the defendant

did not object. (R. 1003). After the jury instructions were read, the defense

did not renew any objection before the jury retired to deliberate. (R. 1060-

66).

The ineffective assistance argument in the postconviction motion was

that

[a]lthough the defense made an initial objection to

this instruction, it was deficient performance to
abandon that argument by telling the judge they were
looking for caselaw and then failing to present any,
and then failing to specifically object to this jury
instruction at either the conclusion of the charge

7
 conference or when or after it was actually given to
the jury. In the context of what unfolded here,
counsel telling the Court that they were looking for
caselaw, and then never returning to the topic, could
only have given the trial court the impression that
such caselaw did not exist, that the instruction it ws
contemplating giving was indeed proper, and that the
defense was abandoning their objection. This was
ineffective assistance of counsel.

(R. 76-77). The motion also argued that counsel was ineffective for failing to

cite the voluminous and uniform favorable caselaw on this issue to the trial

court. (R. 77, 79). The motion argued the defendant was prejudiced because

this instruction negated the sole defense in the case, self-defense. (R. 79-

80).

At the evidentiary hearing, the State called only lead trial counsel,

Matthews Bark (co-counsel Carrie Rentz was the one who handled the jury

instruction issue). Mr. Rentz testified that he believed they objected to this

jury instruction and “We supplied a different instruction. The exact one I don’t

have. It should be in the transcripts . . .” 2 (R. 1458). The State asked Mr.

Bark if he found case law to support the instruction he was asking for and he

stated “Ms. Rentz was handling that part. I believe if she did sign [sic]

2
This was incorrect. The defense did not supply any alternative jury
instruction to replace the erroneous instruction that the defendant was
presumed to be there to use unlawful force or violence if he unlawfully
entered the victim’s home.

8
anything, it would be in the transcript. But I’m not sure that she did.” (R.

1459). The State asked “So ultimately this was an issue that you were aware

of and made the Corut aware of and the Court overruled your objection?”

and Mr. Bark said “Correct.” (R. 1459).

On cross examination, Mr. Bark agreed that it was important that the

jury get an accurate instruction on the justifiable use of deadly force since

that was the defense in the case. (R. 1479). Mr. Bark agreed that he would

not want this instruction read in this case because it “tells the jury that, you

know, if they find that Daniel’s doing exactly what you were admitting he did,

entered somebody else’s dwelling, he’s presumed to have been there for the

reason to commit a crime.” (R. 1481). Mr. Bark agreed that the instruction

was improper and said he didn’t believe that the case law stating as such

was presented to the trial judge. (R. 1484). Asked if he renewed the

objection at any point Mr. Bark said he didn’t know but would not dispute the

accuracy of the transcript. (R. 1485).

In argument on this issue, the judge asked undersigned counsel if he

agreed that the issue was preserved for appeal and undersigned counsel

stated no because “the conversation was still ongoing. And when the

defense tells the judge, you know, I’m trying to find some—I was trying to

find some case law, and then just leaves off there, you know, the Judge is

9
correct or is within their rights to assume then, you know, when they never

provide the case law they promised the judge they were gonna provide, it

doesn’t exist. In fact, it did exist. There’s cases directly on point and—so

no. I think once it’s left out that way where the—” (R. 1515). The defense

position was that this issue was not properly preserved for appeal and if

raised on direct appeal the Attorney General would have argued it was

abandoned. (R. 1516). The defense argued that “They should have

presented that legal argument and that case law. And if they had, there’s no

possibility—the Judge would not have said, oh, I’m not gonna follow the

Florida Supreme Court. The Judge would not have said I’m not gonna follow

the DCA. The jury instruction would not have been given if they had made

the proper objection and proper argument.” (R. 1521).

The State conceded that the jury instruction was improper and “even

though that was deficient, I do not believe that there’s still prejudice in this

case in terms of that one sentence.” (R. 1521).

The defense responded that there was prejudice because this

instruction negated the entire defense by telling the jury the victim was

justified in using force, since the defense was that Leija used deadly force in

response to the victim’s use of force. The defense argued that under the

caselaw wholly negating the sole defense in the case is “automatically

10
prejudicial”. (R. 1530-32).

The Court ruled that the instruction was proper and “supported by the

facts at trial” and that any objection would have been meritless. (R. 1118).

The Court also found that the trial objection preserved the issue for appeal,

citing Wong v. State, 212 So.3d 351, 357 (Fla. 2017) for the proposition that

an objection to a jury instruction is sufficient to preserve the issue and it is

not necessary to provide supporting case law. (R. 1118-19). The Court then

said “the instruction given was likely inappropriate” but that counsel had

objected and thus was not ineffective, and denied the claim. (R. 1119).

2. Failure to Move to Suppress The Portions of

Defendant’s Statement Made After He Invoked His
Miranda Rights.

The statement by Daniel Leija in this case is discussed in detail in the

postconviction motion at pages 8-16 (R. 62-70). It was also attached in its

entirety to the motion. (R. 108-187). The relevant portions for this claim are

that after claiming that he stabbed the victims while acting in self-defense,

he said “y’all might probably lock me up for life. But I was self-defense, like

I don’t fuck, I go get a lawyer.” (R. 66, 126, 785) (emphasis added). This

statement was ignored by the interrogating detective, who continued

questioning Leija and subsequent to the “I go get a lawyer” statement elicited

11
multiple incriminating statements. Later, after the detective began

confronting Leija with apparent weaknesses in his story, Leija said “I’m

gonna be fucked man, you know what I’m saying, so I rather not even talk.”

(R. 69, 155, 818) (emphasis added). Again, interrogation continued, with the

detective saying they were trying to figure out what happened and asking

Leija more questions about the details of what had happened, and eliciting

more incriminating responses.

The postconviction motion claimed that the “I go get a lawyer” and later

“I rather not even talk” statements were unequivocal invocations of Leija’s

Miranda rights, and that counsel was ineffective for not filing a motion to

suppress the portions of the defendant’s statement that followed. Leija, the

motion argued, was prejudiced because the post-invocation aspects of the

statement were extremely damning when used against him at trial. (R. 81-

83).

At the evidentiary hearing, lead trial counsel, Mr. Bark, testified that he

had filed a motion to suppress the entire statement on the grounds that Mr.

Leija was too intoxicated to knowingly and voluntarily waive his Miranda

rights, which was denied. (R. 1463). Mr. Bark said he had listened to his

client’s statement and did not believe that he had ever unequivocally invoked

Miranda. (R. 1464). He did not recall discussing the possibility of filing a

12
motion to suppress portions of the statement on those grounds with either

co-counsel or his client. (R. 1464). Asked about the specific statements at

issue, Mr. Bark said “There’s a bevy of case law on the issue, ruminations

are not enough for an invocation.” (R. 1465). On cross examination, Mr. Bark

said that if he could choose, he would have kept the statement out entirely,

and keeping some of the statement out would also have been preferable to

the jury hearing the entire statement. (R. 1488-89). Asked about the “I go

get a lawyer” statement specifically, Mr. Bark said he thought it supported

the initial argument that Mr. Leija was intoxicated because it was “not a very

clear statement as to what he was requesting at all.” (R. 1491). His goal was

to get the entire statement suppressed because his client was intoxicated.

(R. 1491). Asked if as a fallback he could have argued that the portion after

“I go get a lawyer” be suppressed, he said he could have argued that but he

didn’t think it was a good strategy to do so because it would not have been

granted and would negatively affect his credibility with the Court. (R. 1491-

92). Asked about the “I rather not even talk” statement, Mr. Bark said he

thought it was “equivocal to rumination”. (R. 1494). Asked if he had seen the

Wilder v. State, 40 So.3d 804 (Fla. 1st DCA 2010) case cited in the

postconviction motion that also featured a “I would rather not even talk”

statement, Mr. Bark said he had but did not recall what the motion said about

13
Wilder. (R. 1494).

The defense argument post-hearing was that the specific statements

at issue where Leija discussed getting a lawyer were unequivocal, and were

in contrast to the cases where a defendant’s potential invocation was found

to be equivocal because those cases feature conditional language like “if” or

“maybe” regarding getting an attorney. (R. 1533-34). The defense discussed

the Wilder case and the Court wanted to know if that was a case where the

defendant made a full confession. (R. 1535). Undersigned counsel said he

didn’t have the case in front of him and wasn’t sure but he assumed so

because a motion to suppress was filed. (R. 1535). Either way, undersigned

counsel argued, the content of a later statement doesn’t matter when

analyzing whether it should be suppressed because the defendant had

invoked his Miranda rights prior to giving it, an argument the lower court said

it disagreed with. (R. 1536). The Court asked about prejudice and counsel

argued that without the confession the case could probably not have even

been prosecuted as there was no evidence as to what happened between

Leija and Marcos Alvarez-Jimenez which was the precipitating event other

than Leija’s own incriminatory statement. (R. 1537). The confession was the

primary evidence in the case. (R. 1537).

The State argued that the statements were equivocal and were talking

14
about getting a lawyer in the future to defend the case, “not I want a lawyer

right now for the purpose of this interrogation”. (R. 1539). The State

acknowledged that in Wilder the defendant said “I would rather not even talk

unless I have an attorney”, but “[t]hat case is different from our case”, without

explaining in a way that undersigned counsel is able to articulate how the “I

rather not even talk” statement in this case differed from the statement in

Wilder. (R. 1538, 1542). The State also relied on Spivey v. State, 45 So.3d

51 (Fla. 1st DCA 2010) where the defendant said “If I’m being held and I’m

being charged with something” I need to call my lawyer, and said that was

analogous to what they said was an equivocal invocation in this case. (R.

1543). The defense responded that Spivey was different because the “if”

made the defendant’s statement conditional, and thus equivocal. (R. 1543-

44). Leija’s statements were not conditional. Id.

The lower court’s Order found that both statements were equivocal and

thus were not invocations of Miranda. (R. 1122-23). It appeared to believe

that the “I rather not even talk” statement was a closer call but “it is not clearly

unambiguous or akin to statements where courts have found an unequivocal

invocation of the right to silence, such as a suspect saying ‘I would rather not

even talk unless I had an attorney present’” in Wilder. (R. 1122). The Court

says that “[i]n context, Defendant seems instead to be talking despondently

15
about his chance as trial” and that the invocation was ambiguous because

the defendant kept talking. (R. 1123). The Court found that counsel was not

ineffective as to this ground.

3. Failure to Move to Redact and Keep from the Jury The

Portions of the Defendant’s Statement Where the
Interrogating Detective Opines on His Guilt and
Denigrates His Self-Defense Claim.

During the interrogation, which was played in its entirety for the jury,

the interrogating detective makes numerous statements which give his

personal opinion that the defendant committed crimes and that his self-

defense claim was invalid. These include the detective saying:

• “You armed yourself with knives before you walked

into that guy’s room. And you stood there while he
was in a defenseless position, he was in a bed, and
you stood there and said ‘get the fuck up wetback’”.
(R. 161, 825).

• “I think that you made some bad decisions, hell yeah

I think you made some bad decisions bro.” (R. 174,
840).

• “to me, it looks like…it looks like you went up there

intentionally to get in some kind of confrontation with
your girl, at the club. . . . That’s what it looks like to
me.” (R. 175, 840).

• “Daniel, you can hide behind self-defense all you

want, but you want me to tell you where self-defense
stop? . . . Self-defense stopped in the parking lot

16
 of that Club Fenix. It’s self-defense. . . If I come up
and punch you . . . in the back of the head. Self-
defense stopped in the parking lot of Club Fenix.
(R.179-80, 845-46) (emphasis added).

The 3.850 motion alleged that counsel was ineffective for failing to

move in limine to redact these opinions and statements of the officer from

the interrogation as presented to the jury. (R. 84-85). It cited caselaw stating

that such law enforcement statements giving their opinion that the defendant

is guilty or their version of what the law is (such as that self-defense was not

a legally valid defense) are wholly inadmissible. (R. 85-87).

At the evidentiary hearing, lead trial counsel Mr. Bark stated that these

statements by the detective during the interrogation were “not something that

drew my attention enough that I raised it” and his concern was the entirety

of the confession. (R. 1466). On cross-examination Mr. Bark stated that the

defense could have objected to the officer giving his definition of self-defense

and that the entire issue in the case was indeed whether the legal defense

of self-defense applied. (R. 1499). The statement about self-defense

stopping at Club Fenix, which was a location that Leija and some of the

victims were earlier that night, if true would mean that self-defense was not

applicable in the victims’s home, and trial counsel agreed “that’s not a

complete analysis of self-defense. And as I stated, we probably should have

17
objected to that statement coming in.” (R. 1500-01). Asked if it was an error

not to keep the officer’s statements out, counsel said “It wasn’t an error? You

know, when you have a 90-minute confession and there’s this little part that

perhaps you could have gotten out, yes. But when you’re looking at your

client’s liberty in whole and you go, wow, if I can’t get any of this out, what

am I gonna do, yeah, it’s an overwhelming amount of evidence in. Could we

have raised it? Yes.” (R. 1501).

In argument on this ground the Court said that assuming it found

ineffective assistance (deficiency, it meant) it wanted counsel to address

prejudice. (R. 1545). Counsel stated that the prejudice was that these officer

statements were on the sole issue in the case, self-defense and its

applicability. (R. 1545-46). “Police officers, by virtue of their positions,

rightfully bring with their testimony an air of authority and legitimacy . . . the

jury hears the detective say something about what the law is, they’re gonna

believe it. And in fact, it should only be the Judge who’s instructing the jury

on what the law is.” (R. 1546). The defense argued it was reasonably likely

the jury would have had a reasonable doubt on the self-defense issue but for

the inadmissible officer opinion. (R. 1547).

The State conceded to deficiency and that counsel should have moved

in limine to exclude the officer statement. (R. 1548). However, to the State

18
it was only one statement and that “wasn’t the thing that tipped the camel’s

back”, so there was no prejudice. (R. 1549-52).

The Court ruled that counsel was deficient for not keeping these officer

statements out, but found that the defendant was not prejudiced because

“[t]he officer’s statements were made after Defendant already admitted to

breaking into the home and stabbing the victims” and “the jury would have

still heard Defendant’s admissions to the crimes” absent the officer

statements. (R. 1125).

4. Failure to Introduce and Use a Legal Guardianship

Document Showing that Mayriani Gomez’s Parents Had
Intended to Grant Legal Guardianship of Mayriani to
Daniel Leija’s Parents, Showing Their Relationship Was
Far More Serious Than She Acknowledged And That
Her Relationship with Her Parents Was Far More
Strained Than She Acknowledged.

There was not dispute that the entire reason that Daniel Leija was in

the home that night was related to his ex-girlfriend Mayriani Gomez. She

claimed it was because he was unhappy she had broken up with him and

moved on, and had come over uninvited out of drunken anger or jealousy or

some such emotion. He claimed (in his statement to police) that he had a

standing invitation from Ms. Gomez, as they were still seeing each other and

had never fully broken up despite her mother’s disapproval of the

19
relationship. If Leija had been given permission to enter by Mayriani, he was

not guilty of burglary, and this also would give him a legitimate reason to be

in the house and make his self-defense claim far more plausible and likely to

be accepted by a jury.

The motion claimed that counsel should have introduced a document

that Lorena Gomez had signed purporting to grant guardianship of Mayriani

Gomez to Daniel Leija’s parents. This document would have supported the

self-defense claim by demonstrating that Daniel Leija was not some run-of-

the-mill ex-boyfriend and that the two were serious enough, and the

relationship between Mayriani and Lorena was strained enough, to produce

such a guardianship arrangement This would have made it more likely that

Mayriani would invite Leija to the home as he claimed, and that he would

have to sneak in through a window at Mayriani’s instruction to avoid detection

by Lorena, “which in turn would have supported the ultimate self-defense

claim that while he was there with permission from Mayriani (though not

Lorena), he was physically attacked by Marcos, at which time he defended

himself with the knife and the situation quickly became chaotic and

uncontrollable when Ismael and the others showed up.” (R. 89).

At the evidentiary hearing, the defense called Emilio Leija, Daniel’s

father (Emilio’s wife/Daniel’s mother Andrea had passed away after the trial

20
but before the evidentiary hearing). (R. 1411-14). Emilio testified that

Mayriani’s mother did transfer guardianship of Mayriani to him and Andrea

and said “take her”. (R. 1417-18). Through Emilio, the defense introduced

the document, a notarized letter stating that Lorena granted guardianship of

Mayriani to Andrea and Emilio Leija and they “shall have all powers and

authority over my daughter Mayriani Gomez” and would live with them and

attend school in the district where they lived. (R. 1402-03).

Emilio testified that Mayriani lived in his home up until the time of this

incident and never moved out or took her personal effects out of the home.

(R. 1427). He and Andrea continued to have full custody until the incident.

(R. 1433). When Daniel was arrested, Emilio hired his lawyer and told the

lawyer about Daniel’s living situation with Mayriani and the guardianship

transfer and document. (R. 1433-34). Emilio attended Daniel’s trial, and

would have been willing to testify at it, but was never asked by the lawyer to

do so. (R. 1434-35).

Daniel Leija also testified at the evidentiary hearing to the guardianship

arrangement and that Mayriani had a bad relationship with her mother. (R.

1441-43). There were multiple times in his relationship with Mayriani where

they broke up and got back together. (R. 1444). Daniel heard Mayriani testify

at trial that she had broken up with him and he was jealous and trying to

21
pursue her, which was not true and which he told his attorney was not true.

(R. 1445). The lawyer did not call his parents to talk about the guardianship

and their knowledge of the relationship between him and Mayriani, and he

trusted the attorney as the experienced professional in this field to make

those decisions. (R. 1445-46).

Mr. Bark, the trial attorney, testified that he did have the guardianship

document before trial and was given it by the Leija family. (R. 1469-70). He

did not try to introduce it because it was not a legally binding guardianship

document and because he did not want to attack Mayriani’s credibility as “we

had people who had been stabbed. So to try to denigrate them in that way,

we did not think was the best strategy.” (R. 1470-71). He said the purpose

of introducing the guardianship situation would be to diminish the credibility

of Mayriani, and that he didn’t think that would be effective when there was

a confession. (R. 1472).

On cross-examination Mr. Bark said he had numerous conversations

with the Leija family about Mayriani and “her character, the nature of their

relationship, what Mayriani wanted and didn’t want at different times”. (R.

1508). Daniel did tell him that Mayriani had invited him to the home the night

of the incident. (R. 1508). He agreed that even if the guardianship document

was not legally enforceable, it showed that at some time Lorena had the

22
intent to transfer guardianship of Mayriani to the Leija’s. (R. 1509). Mr. Bark

said he did not have evidence to present that the guardianship was still in

place at the time of trial, and he didn’t think it was a good strategy to attack

the witness when the confession rebutted the claim that Daniel was there

with permission. (R. 1511).

In argument on this ground undersigned counsel argued that

Mayriani’s trial testimony was that this was not a serious relationship and

that Daniel Leija was pursuing her and she wanted nothing to do with him,

but the guardianship document showed that this was in fact a very serious

relationship to the point where her mother gave up custody and guardianship

of her daughter to Leija’s parents. (R. 1553). Whether or not trial counsel

wanted to attack Mayriani’s credibility, he had to because if she was telling

the truth Daniel was not in the home with permission and did not act in self-

defense. (R. 1553-54). The main way a lawyer attacks credibility at trial is to

introduce a prior statement that is inconsistent with what the witness is

saying on the stand, and here the guardianship document was inconsistent

with what Mayriani was saying on the stand about the nature of her

relationship with the defendant. (R. 1554). Without some evidence to the

contrary, like the guardianship document, there was “nothing presented to

rebut what Mayriani and the other family members were saying about, you

23
know, he was just this jealous, spurned ex-boyfriend that, you know, came

over there and for no other reason than to wreak havoc.” (R. 1554).

The State argued that the guardianship could have been revoked at

any time so it would not prove anything about the current status of the

relationship at the time of the incident, and there was a trial strategy not to

attack sympathetic victims. (R. 1556). The State said the jury knew that

Daniel and Mayriani were in a relationship at one time and the guardianship

information would be cumulative and potentially an improper attack on

Mayriani’s relationship with her parents. (R. 1558).

The lower court order found that the guardianship document was

inadmissible hearsay and could not have been used to impeach Lorena

Gomez because she was not called at trial (this was incorrect, Lorena

Gomez did testify at trial, called by the State). (R. 1127). The Court also

found it was a trial strategy decision not to “muddy the water” with a

tangential issue and not to attack the credibility of victims who had been

stabbed. (R. 1127). The Court found that tactical decisions such as this do

not warrant postconviction relief, and “it was a reasonable strategy that

Counsel employed as to not confuse or upset the jury”. (R. 1128). The Court

found neither deficiency nor prejudice. (R. 1128-29).

24
 STANDARD OF REVIEW

“In reviewing a trial court’s ruling after an evidentiary hearing on an

ineffective assistance of counsel claim, this Court defers to the factual

findings of the trial court to the extent that they are supported by competent,

substantial evidence, but review de novo the application of the law to those

facts.” Jennings v. State, 123 So.3d 1101, 1113 (Fla. 2013). The ultimate

question for ineffective assistance claims is whether the defendant has met

their burden of showing both deficiency, meaning counsel’s performance “fell

below an objective standard of reasonableness” and was unreasonable

under “prevailing professional norms”; as well as prejudice, meaning “there

is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

SUMMARY OF THE ARGUMENT

Counsel performed deficiently in multiple areas in this first-degree

murder trial that resulted in consecutive life sentences. At the State’s

request, the Court gave a clearly improper jury instruction that told the jury

that when the defendant entered the dwelling of another, he was presumed

25
to have been doing so with the intent to commit an unlawful act involving

force or violence. In this case it was undisputed that the defendant entered

the dwelling of another and that is where the charged crimes occurred. The

instruction at issue is only to be given when the victim has entered the

defendant’s dwelling and the defendant claims the force used thereafter was

justified. Otherwise, as occurred in this case, the instruction directs the jury

to focus on the lawfulness of the victim’s actions, which is not at issue, and

negates a defense of self-defense by telling the jury that even if the victim

used force against the defendant, the victim was entitled to do so, meaning

in turn that the defendant was not entitled to the justifiable use of deadly

force. Although counsel did raise some initial reservations to the instruction,

they were never finalized and they were abandoned. Because self-defense

was the sole defense here, the defendant was prejudiced.

Separately, counsel was ineffective in two areas relating to a

inculpatory statement the defendant gave to police in the immediate

aftermath of the charged crimes. First, counsel failed to move to suppress

those portions of the statement that occurred after the defendant

unequivocally invoked his right to counsel by stating “I go get a lawyer” and

“I rather not even talk”. Both statements were ignored by the detective, who

continued his interrogation apace. This violated the defendant’s

26
Constitutional right to cease questioning at any time, and would have

resulted in suppression of the bulk of the statements that were most

damaging to the defendant. Second, counsel failed to move to redact clearly

inadmissible statements by the detective during the interrogation, including

that the defendant was guilty and had attacked a defenseless man, and that

the self-defense claim the defendant relied on both in the interrogation and

later at trial was invalid and was something the defendant was “hiding

behind”. In reality, per the detective in a legal pronouncement that was

broadcast to the jury, “self-defense stopped in the parking lot of the club”

before the defendant went to the home where the charged crimes occurred.

Whether or not self-defense was a valid defense, and when and where it

applied, were the questions the jury had to decide in this case. Both errors

related to the defendant’s statement prejudiced the defendant.

Finally, counsel was ineffective for failing to introduce a document, and

testimony regarding it, that would have shown that one of the victims in this

case, Mayriani Gomez, had been in a much more serious relationship with

Daniel Leija than she acknowledged and that she and her mother were not

forthcoming about that relationship in their trial testimony. This was relevant,

and the defendant was prejudiced, because the defense was that Daniel

Leija went to the house not to stab the victims but to see his on-again, off-

27
again girlfriend, entered the house with her permission, and was then

confronted by some of the victims and used deadly force in self-defense.

That defense was far more likely to be accepted by the jury, and the State

witnesses’ testimony to the contrary rejected by the jury, if valid

impeachment evidence that supported the defense and went to the nature of

Mayriani Gomez and Daniel Leija’s relationship (and thus why she would

invite him over but he would need to sneak into the house to avoid her mother

Lorena Gomez discovering his presence) was introduced.

ARGUMENT

1. Counsel Provided Ineffective Assistance of Counsel

In Failing to Properly Object to Erroneous Jury
Instruction on Justifiable Use of Deadly Force That
Told Jury That a Defendant Who Unlawfully Entered
Another’s Dwelling Was Presumed to Be Doing So
With The Intent to Commit an Unlawful Act Involving
Force or Violence, Which Negated the Sole Defense
In the Case.

It was not disputed that the defendant did enter the victims’ home and

stab the victims therein. The sole defense in this case was self-defense—

that after entering the home Daniel Leija was attacked by Marcos Alvarez-

Jimenez, who had a knife, and in response Leija stabbed Alvarez-Jimenez

28
and then Ismael Sanchez, who had joined in the attack 3, in order to defend

himself. In evaluating this defense, it should be remembered that when DNA

testing was done on knives recovered from the scene, the handle showed a

mixture with the major contributor being Marcos Alvarez-Jimenez and the

minor contributor being Daniel Leija. (R. 678-79) (The DNA on the other knife

could not be matched to anybody (R. 680)). No witness saw the initial

confrontation between Leija and Alvarez-Jimenez or could testify as to who

started it.

This defense was entirely negated by the jury instruction that if

someone “unlawfully and by force enters or attempts to enter another’s

dwelling [they] are presumed to be doing so with the intent to commit an

unlawful act involving force or violence.” (R. 765). The only person alleged

to have entered another’s dwelling in this case was Daniel Leija, so the only

person this instruction could possibly apply to was Daniel Leija. When

coupled with the remainder of the justifiable use of force instructions that told

the jury that a person may lawfully use deadly force when confronted with

force against themselves, this instruction was plainly telling the jury that even

if Marcos Alvarez-Jimenez started the confrontation and used force against

3
And the other two victims accidentally as they were joining the chaotic
melee.

29
Daniel Leija (i.e. tried to stab Leija with a knife which would be an attempt to

commit aggravated battery which the jury was explicitly told would justify the

use of deadly force (T. 765)), Marcos Alvarez-Jimenez would have been

justified in doing so, meaning that Daniel Leija would not have had the right

to use deadly force in turn. In fact, this was the exact reason the State

articulated for why they wanted the instruction read: “The defendant is saying

that he was attacked while he was in someone else’s house. This explains

that, if that were even true, then that person could possibly legally have the

right to attack them.” (R. 720-21).

Whether the victim had the legal right to attack the defendant is not the

issue in a self-defense case, as the victim is not charged with any crime. The

caselaw is uniform in stating that it is error to shift the focus to the right of the

victim to use force. See, e.g., Mann v. State, 135 So.3d 450 (Fla. 5th DCA

2014) (“Although the State was understandably worried that the defense

would focus on the fact that [the victim] attacked [the defendant] first, such a

focus is relevant and permitted because the disputed issue in this case was

[the defendant’s] reasonable belief that the use of deadly force was

necessary to protect himself.”). The leading case is the Florida Supreme

Court’s decision in Butler v. State, 493 So.2d 451, 452 (Fla. 1986), stating

that “[a] jury instruction pertaining to justifiable use of force in one’s home

30
given in a case where the crime occurred in the victim’s home and the victim

denied attempting to use force does not relate to the evidence received at

trial and is extremely confusing and misleading.”. Many other cases are cited

in the postconviction motion at pages 24-25 (R. 78-79).

The lower court Order in this case is not clear as to whether the judge

found the instruction that told the jury the defendant was presumed to be

there to commit an unlawful act involving force or violence was legally

incorrect. At one point the Order says it wasn’t as the instruction was

supported by the facts at trial. (R. 1118). At another point it says the

instruction was “likely inappropriate.” (R. 1119). To the extent that the lower

court upheld the legality of giving an instruction that tells the jury a victim has

the right to use force when a defendant unlawfully enters their home, this

Court should reverse because the case law clearly says the opposite. Solely

at issue in a self-defense case is whether the defendant has the right to use

deadly force.

The State below conceded the jury instruction was improper but

argued that trial counsel was not ineffective because they did object to it

being given. The Order also finds that counsel was not ineffective because

they did object. (R. 1119). As argued below, a fair reading of the trial

transcript demonstrates that although trial counsel did initially object, they

31
abandoned that objection by stating that they would provide case law to the

Court in what was then an ongoing dialogue, and then never providing that

case law and never returning to the issue. This issue was not raised on

direct appeal despite a plethora of case law reversing in self-defense cases

when this sort of instruction that negates the sole defense was given.

Presumably appellate counsel felt the issue was not preserved, or it would

have been raised. Preservation requires that the issue be “presented to, and

ruled on by the trial court” and not “abandoned before the trial court had an

opportunity to rule on it”. Latif v. State, 711 So.2d 241, 241-42 (Fla. 5th DCA

1998). A specific objection must be articulated at the trial court level. Orton

v. State, 212 So.3d 377, 378-79 (Fla. 4th DCA 2017). Here when the State

asked for the instruction, the defense said they “wholeheartedly disagree

with that” because “what they’re trying to say is the opposite of what the

statute actually is for”. (R. 957-58). The Court said it thought the instruction

applied to the facts of the case and the defense said it was trying to find

some case law on this. (R. 959). The Court said it was “inclined” to give the

instruction and the defense did not object (in fact the defense never said it

“objected” to the instruction). (R. 960). The defense later apprised the Court

it was “trying to obviously do the jury instructions and still research” and “I

think I might have found a case” regarding the instruction. (R. 963). That

32
was it. The defense never followed up. There was ample time between that

moment and the jury instructions being read to the jury (the transcript reflects

a recess from 3:36 to 3:49 (R. 970) and a later resumption of proceedings at

4:08 (R. 974). The parties subsequently discussed demonstrative aids and

the State claimed unrelated errors in the instructions, all before the

instructions were given. (R. 974-79). At no time during this period, where

the last thing the defense said was that they thought they had perhaps found

a relevant case on the topic, did the defense further discuss the jury

instructions, advise the Court as to any case, or otherwise finalize their

objection. Such was also not done when the instruction was read or

afterwards.

In these circumstances, the trial court would reasonably conclude that

any objection was never finalized and was ultimately abandoned, likely

because the case law research the defense said they were doing had not

yielded favorable results for them. Proper preservation of this issue would

have at a minimum involved the defense specifically advising the judge that

the instruction was being given over their objection, and ideally would have

involved citation to some (or any) of the voluminous case law directly saying

that this instruction is improper when, per the facts of the case, it could only

apply to the victim.

33
 In Wong v. State, 212 So.3d 351 (Fla. 2017), cited by the trial court,

the defense asked for a lesser included offense and the trial court said it

didn’t have to give it. The District Court said the issue was not preserved for

review, and the Florida Supreme Court said that “a request for a lesser

included offense jury instruction is preserved where trial counsel makes a

specific request, trial counsel sets forth the required grounds for the request,

the judge understands the request, and the judge denies the request.” Wong

at 359. Wong does not govern this case because in Wong there was a clear

and final defense request for a jury instruction and a clear ruling from the

Court. In contrast, in this case the discussion was an ongoing dialogue which

the defense never concluded, and thus abandoned. There was neither a

clear and final objection nor a clear and final ruling (until the Court in fact

gave the incorrect instruction, at which point there was no objection). This

case is more analogous to Many v. State, 756 So.2d 169 (Fla. 4th DCA 2000),

where the defense discussed a jury instruction issue during a “preliminary,

informal discussion of jury instructions” but did not formally request the

instruction or object to the instructions as given, and thus did not preserve

the issue.

Furthermore, trial counsel was ineffective, as argued below, because

they failed to cite applicable caselaw on this specific topic. (R. 77). If that

34
caselaw had been cited, clearly the court would not have simply disregarded

controlling precedent and given this instruction. Jones v. State, 200 So.3d

80 (Fla. 5th DCA 2015) collects cases finding appellate counsel ineffective

for failing to cite extant caselaw in support of a client’s position.

Alternatively, if the Court finds that this issue was preserved and

therefore that counsel was not ineffective, it should still reverse as wholly

negating the sole defense in a criminal case with an inapplicable jury

instruction is fundamental error. “The appellate courts consistently have

found fundamental error in those cases where the erroneous instruction

negates the defendant’s sole defense to the crime charged”. Martinez v.

State, 933 So.2d 1155, 1166 (Fla. 3rd DCA 2006). In Bassallo v. State, 46

So.3d 1205 (Fla. 4th DCA 2010) the Court reversed a self-defense case on

direct appeal where an improper jury instruction that negated the defense

was not objected to, pursuant to the fundamental error doctrine.

Fundamental errors can be corrected via 3.850 motions. See, e.g., Arteaga

v. State, 246 So.3d 533, 538 (Fla. 2d DCA 2018) (“It is fundamental error

remediable in a rule 3.850 ineffectiveness claim to fail to instruct a jury on a

defense of excusable or justifiable homicide where the evidence supports

it”). Another option, if the Court finds that the claim was preserved for appeal,

would be treat the timely filed 3.850 claim as a claim of ineffective assistance

35
of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141,

and reverse on that basis. If the claim was preserved below, it clearly should

have been raised on direct appeal, given the volume of cases reversing on

direct appeal in just this situation.

However, Appellant’s primary argument remains the one made

below—the issue was not preserved, the lower court was wrong to find that

it was, and the failure to properly object was deficient performance that, since

it resulted in a jury instruction that negated the sole defense in the case and

directed a verdict of guilty, necessarily prejudiced the defendant. This Court

should reverse and remand with instructions to grant this aspect of the 3.850

motion.

II. Counsel Was Ineffective For Failing to Move

to Suppress The Portions of Defendant’s
Statement Made After He Invoked His Miranda
Rights.

In context, both “fuck, I go get a lawyer” and “I’m gonna be fucked man.

You know what I’m saying. So I rather not even talk.” are unequivocal

invocations of the defendant’s Miranda rights. Both statements were wholly

ignored by the detective who proceeded with questioning. The law is that if

an interrogee “indicates in any manner, at any time prior to or during

36
questioning, that he wishes to remain silent, the interrogation must cease. .

. . Without the right to cut off questioning, the setting of in-custody

interrogation operates on the individual to overcome free choice in producing

a statement after the privilege has been once invoked.” Miranda v. Arizona,

384 U.S. 436 (1966). As the lower court recognized, equivocal statements

do not suffice to invoke Miranda, so the legal question here was whether

these statements were unequivocal or equivocal.

Whether a potential invocation is equivocal is “objective; that is a

suspect must articulate the desire to cut off questioning with sufficient clarity

that a reasonable police officer in the circumstances would understand the

statement to be an assertion of the right to remain silent.” Alvarez v. State,

890 So.2d 389, 394 (Fla. 1st DCA 2004). There are no “magic words” an

interrogee has to use to invoke Miranda. Deviney v. State, 112 So.3d 57, 74

(Fla. 2013). However, “equivocal or ambiguous” requests for counsel do not

require police to cease interrogation. Davis v. United States, 512 U.S. 452

(1994); State v. Owen, 696 So.2d 715, 717 (Fla. 1997).

Case law makes clear that conditional requests for counsel are

equivocal. In Walker v. State, 957 So.2d 560, 574 (Fla. 2007) the defendant

said “I think I might want to talk to an attorney” and in Spivey v. State, 45

So.3d 51, 54-55 (Fla. 1st DCA 2010) the defendant said “I mean if I am being

37
held and I’m being charged with something I need to be on the phone calling

my lawyer”). Both were found to be conditional and thus equivocal

statements that did not require interrogation to cease. See also Eversole v.

State, 278 So.3d 227, 229 (Fla. 1st DCA 2019) (“If we were to try to get a

hold of [my lawyer] do you think we could get him out here?” equivocal);

Davis v. United States, 512 U.S. 452, 458 (1994) (“maybe I should talk to a

lawyer” equivocal). All of these cases clearly feature equivocal or conditional

language. (“if”, “might”, “maybe”). Spivey, which the Court and state focused

on below, states that the reason the subject did not invoke was because he

said “if” I’m being charged with something he’d want to talk to a lawyer, a

clear condition on whether he wanted to do so.

The statements here, “I go get a lawyer” and “I’d rather not even talk”

are not conditional or equivocal. The first statement is a present sense

narration of what the defendant wants to do, which is go get a lawyer. He

does not say he “might” want to go get a lawyer, or “maybe” he will go get a

lawyer, or “if” he is being charged he will get a lawyer—he says he wants

to—needs to—go get a lawyer. The detective ignored the invocation and

continued interrogation, in clear violation of the Miranda holding. “I rather

not even talk” is also plainly unequivocal. The defendant is saying he

recognizes he has two options, talk or not talk, and he chooses the second

38
option, not talk. As argued extensively below, the exact same statement has

already been found to be an unequivocal invocation of Miranda. In Wilder v.

State, 40 So.3d 804, 809 (Fla. 1st DCA 2010) the defendant said “I would

rather not even talk unless I had an attorney present.” This was found to be

an unequivocal invocation of Miranda. “He unambiguously communicated

his desire that questioning without a lawyer cease.”. Id. The statement here

is indistinguishable from the Wilder statement.

The lower court order acknowledges the Wilder statement but says,

without explanation, that the statement in this case is “much more

ambiguous” than the one in Wilder. That is wrong—it is the same statement.

The lower court also claims the invocation is ambiguous because the

“Defendant continues talking for several dozen pages of transcript testimony

without the interrogating officer coercing him into doing so.” (R. 1123). Of

course, this is irrelevant to the inquiry. Leija continued to talk after the

detective ignored his invocation and immediately began asking him about

the crime, saying “If you were the police, and you went into that girls room

and you saw . . . the knife laying there. And then you found out that the girl’s

got stab wounds behind her head, what would you (inaudible)?”. (R. 155).

The continued interrogation is the legal problem. If the defendant continuing

to talk after invoking Miranda were enough to render an invocation

39
ambiguous and the statements admissible, there would be no need for this

entire body of caselaw, or indeed suppression of any statement.

Because both “I go get a lawyer” and “I rather not even talk” were

unambiguous invocations of the right to counsel, a properly filed motion to

suppress would have been granted and the defendant’s statements made

thereafter, which were the bulk of the incriminatory statements, would have

been suppressed. It was deficient performance not to file a motion to

suppress on this basis. The defendant was prejudiced because his own

statements were the most harmful evidence against him and there was no

other evidence as to what happened during the initial interaction with Marcos

Alvarez-Jimenez in a case where the trial defense was that Leija was

defending himself against Alvarez-Jimenez. Because the lower court erred

in finding that it was not ineffective assistance of counsel to fail to move to

suppress the statements on this basis, this Court should reverse and

remand.

III. Counsel Was Ineffective for Failing to Move

to Redact and Keep from the Jury The Portions
of the Defendant’s Statement Where the
Interrogating Detective Opines on His Guilt and
Denigrates His Self-Defense Claim.

As the State conceded below and the lower court found, counsel was

40
deficient for not moving in limine to redact from the defendant’s interrogation

and statement the officer’s opinions about his guilt and denigration of his

defense, including that the victim was “defenseless” and that Leija attacked

him, that Leija made bad “decisions”, that it looked to him like Leija went to

the club earlier that night with the intent to start problems with some of the

victims, and most damningly that Leija could “hide behind self-defense all

you want, but you want me to tell you where self defense stopped? Self-

defense stopped in the parking lot of that club . . .”.

Officer opinion testimony as to a defendant’s guilt is inadmissible

because “[p]olice officers, by virtue of their positions, rightfully bring with their

testimony an air of authority and legitimacy. A jury is inclined to give great

weight to their opinions.” Tumblin v. State, 29 So.3d 1093, 1101 (Fla. 2010).

An officer’s opinion that self-defense is not a legal defense based on the

facts of the case is plainly inadmissible. See Odeh v. State, 82 So.3d 915,

920 (Fla. 4th DCA 2011); Martinez v. State, 761 So.2d 1074, 1079 (Fla.

2000). “[I]t is not safe to assume that jurors can recognize as an interrogation

technique that an investigating officer may offer an opinion about the law

during interrogation to elicit a response from a criminal suspect”.” Odeh at

921.

The lower court erred in finding that this deficient performance did not

41
prejudice the defendant. Although it is true that Leija’s statement, without

the officer’s opinions as to the facts of the case and the validity of his

defense, was not helpful to the defense, he did consistently say that he was

acting in self-defense and was confronted and attacked by the male victims

at the time that he swung the knife and stabbed them and the female victims

who had come in. (R. 65-68). The entire reason that the officer was saying

that Leija was the aggressor, made “bad decisions”, and was “hid[ing] behind

self-defense” was that Leija was claiming self-defense in his statement. That

was also the defense at trial. It should have been up to the jury, not the

investigating detective, to determine whether “self-defense stopped at the

parking lot of that club”. Although it was undisputed that Leija had stabbed

and injured, or, in the case of Mr. Alvarez-Jimenez, killed, the victims, the

question of what precipitated this was not the subject of overwhelming

evidence at trial. Nobody witnessed or testified about the initial interaction

between Leija and Mr. Alvarez-Jimenez, which was the critical point in this

case at which Leija either did or did not have the right to use deadly force

(swinging the knife) in self-defense. Mr. Alvarez-Jimenez’s DNA was the

major contributor to the handle of one of the two knives recovered,

supporting the claim that he had it in his hand, putting Leija in reasonable

fear of death or serious bodily injury and permitting him to use deadly force.

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 The detective’s inadmissible statements went directly to, and

completely discredited, the sole defense in the case. “[T]here is an increased

danger of prejudice when the investigating officer is allowed to express his

or her opinion about the defendant’s guilt.” Martinez v. State, 761 So.2d

1074, 1080 (Fla. 2000). “It seems axiomatic that an officer’s opinion

regarding a legal defense raised by an accused is tantamount to an opinion

as to the guilt or innocence of the accused." Odeh v. State, 82 So.3d 915,

920 (Fla. 4th DCA 2011). Because this was not on a peripheral matter but

on the sole issue for the jury in this case, and because the jury was, by nature

of the officer’s role and experience, likely to credit his account of what the

defendant did (attacked a defenseless victim) and whether it was legally

justified (no, because self-defense stopped before Leija went to the house),

failing to object to the officer’s comments prejudiced the defendant. See

Sparkman v. State, 902 So.2d 353 (Fla. 4th DCA 2005) ([officer’s] out of court

statements as to what he believed happened and that he believed

[defendant] killed [victim] were so prejudicial that the erroneous admission of

the statements cannot be considered harmless beyond a reasonable

doubt”). Woody v. State, 745 So.2d 1033 (Fla. 2d DCA 1999) is analogous

to this case. The victim testified that after consensual sex the defendant

slashed her neck with a box cutter. The defendant testified that the victim

43
attacked him and he fought back in self-defense. In the interrogation the

officer stated that she knew the defendant had committed the crime, and

there were also other prejudicial things the jury heard through the

interrogation that should have been redacted. The Court said it had “no

hesitation in concluding that for the jury to hear about collateral crime

evidence, Mr. Woody’s status as a probationer, his drug use, his cold-

blooded nature, and the officer’s opinion of his guilt, as well as the

mention of the unsolved homicide, so tainted the trial that the outcome of the

proceedings was fundamentally unreliable. We thus find the ‘prejudice’

prong of Strickland has been met.” Woody at 1034 (emphasis added). The

appellate court reversed with directions to grant the postconviction motion

and afford the defendant a new trial with competent counsel. The same

result should obtain here. Although it is true that “the jury could have come

to the same verdict without the detective’s statements”, which is what the

lower court found (R. 1125), that is not the Strickland prejudice standard.

The proper inquiry is whether there is a reasonable probability, one sufficient

to undermine confidence in the outcome, that but for counsel’s errors the

outcome of the trial would have been different. That standard, which it does

not appear the lower court applied (though it did mention) warrants reversal

here. Daniel Leija is constitutionally entitled to a trial where he has counsel

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that prevents the jury from hearing a detective say that his sole defense is

invalid and that he is guilty.

IV. Counsel Was Ineffective for Failing to

Introduce and Use a Legal Guardianship
Document Showing that Mayriani Gomez’s
Parents Had Intended to Grant Legal
Guardianship of Mayriani to Daniel Leija’s
Parents, Showing Their Relationship Was Far
More Serious Than She Acknowledged And That
Her Relationship with Her Parents Was Far More
Strained Than She Acknowledged.

At trial Mayriani testified that Daniel’s motivation for coming to the

home, and for the confrontation that started earlier that night at the club, was

that Daniel was upset and/or jealous because she had broken up with him.

She said she had broken up with him a month and a half before the incident

and he was unhappy about it. (R. 453). She said he got upset and pushed

her and her mom at the club when she didn’t want to talk to him. (R. 454).

She said that after Daniel stabbed her he was crying and she was trying to

calm her down. (R. 462-63).

Contrary to the lower court’s order, Lorena Gomez did testify at trial.

(R. 339). She testified that she knew Daniel Leija “because of what he did

to us”. (R. 340). She acknowledged he had dated Mayriani. (R. 340). She

said that she and Daniel Leija did not get along. (R. 358).

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 In Daniel Leija’s statement to police he said the relationship with

Mayriani had been on-again, off-again and that they had seen each other

shortly before the day this incident happened when Mayriani had asked him

to come over and then Marcos and Lorena were giving him a hard time and

threatening him. (R. 129-30). Daniel said he always sneaked into the house

to have sex with Mayriani. (R. 134). He said Lorena was “crazy” and “not in

her right state of mind”. (R. 142). He said he parked away from the house

because he didn’t want the family to see that he was there and that he was

planning to confront/fight Marcos and then “pick up my girl [Mayriani] and I’m

leaving”. (R. 142).

Per Emilio Leija’s testimony at the evidentiary hearing, although

Mayriani was obviously not physically at his house at the time of this incident,

she still had her things there and he believed Daniel and Mayriani were still

together. The entire narrative of the State’s case was that this was not the

case—Mayriani was done with Daniel, Daniel didn’t like it, and Daniel went

and broke into the house and exacted his revenge by committing the charged

crimes.

Introducing the guardianship documents, and the narrative around

them that Emilio Leija testified to at the evidentiary hearing, would have

presented a very different picture to the jury—one where Lorena and

46
Mayriani obviously had issues if Mayriani was willing to give the Leija parents

custody of her daughter less than a year before this incident, one where the

relationship was far more serious than Mayriani claimed it was, and one

which was in contrast to both Mayriani and Lorena’s trial testimony (for

instance Lorena’s claim at trial that she barely knew Daniel and knew him

now because he had committed these crimes, when in reality she had given

custody of her daughter to his parents). All of this would have made it more

likely that the jury would believe that Daniel and Mayriani were in the “on-

again” phase of a volatile but ongoing relationship, that Mayriani had invited

Daniel over without the permission of her mother, and that he was there with

permission and with a legitimate reason when he was violently confronted

by the two men of the house and used deadly force in self-defense.

Trial counsel’s claim that he did not want to denigrate the credibility of

Mayriani and/or Lorena as victims in this case is not a legitimate trial strategy

rationale. For the trial strategy of self-defense to work and the trial to be

anything other than a slow guilty plea, the witness’s credibility had to be

denigrated. If they were telling the truth, Daniel was there for no legitimate

reason and was not engaged in self-defense. The only valid defense in this

case incorporates the concept that Mayriani was lying about the nature of

her relationship with Daniel in the terrible aftermath of what ended up

47
occurring. If counsel was squeamish about utilizing that defense and

attacking the credibility of a young woman who had been stabbed in these

circumstances, he should not have been defending a first-degree murder

case. Not wanting to turn off a jury in many instances would be a legitimate

trial strategy rationale for certain litigation decisions, but in this case where

the entire defense depended on the jury determining that both Mayriani and

Lorena were not being honest about what had unfolded that night or in the

time leading up to it, counsel’s failure to introduce true information that would

reflect negatively on the victim’s family (that they had arranged an

unorthodox guardianship arrangement with the parents of their daughter’s

boyfriend which at a minimum cast doubt on their narrative about whether

that relationship was ongoing and whether Mayriani and Lorena were

estranged) is not a valid trial strategy. Nor should this Court defer to

counsel’s testimony at the evidentiary hearing that this would not work

because of the content of Leija’s statement to the police, since as counsel

acknowledged at the evidentiary hearing, his entire defense depended on

asking the jury to disregard large portions of that statement to the police.

Because the guardianship document and Emilio Leija’s testimony

about the circumstances under which it was entered and his knowledge and

observations of the relationship was helpful to the defense and contradicted

48
the narrative the State and their witnesses presented at trial, it was deficient

performance not to introduce it. Because it clearly impeached critical State

witness’ credibility on critical issues, there is a reasonable probability that the

result would have been different and the jury would have had a reasonable

doubt as to self-defense had this been introduced, establishing prejudice.

This Court should reverse and remand.

CONCLUSION

For any or all of the foregoing reasons, Daniel Leija received ineffective

assistance of counsel in this first-degree murder trial. He is Constitutionally

entitled to a new trial where his counsel will properly object to, and prevent

the jury from receiving, a jury instruction that entirely negates his defense;

where a properly filed motion to suppress will prevent the jury from hearing

the defendant’s incriminatory statements given after he unequivocally

invoked his Miranda rights and will prevent the jury from hearing the officer’s

statements that he is factually guilty and that his proffered defense is a legally

inapplicable smokescreen he is hiding behind; and where counsel introduces

valid and relevant impeachment evidence that directly supports his defense.

This Court should reverse and remand with instructions to grant the

postconviction motion and order a new trial where Daniel Leija’s

49
Constitutional right to effective counsel is upheld.

Respectfully submitted,

_/s/ Daniel Tibbitt__________

Daniel Tibbitt

Daniel J. Tibbitt, P.A.

1175 NE 125th Street
Suite 404
Miami, Florida 33161
(305) 384-6160
Fl. Bar No: 816361
dan@tibbittlaw.com

CERTIFICATE OF SERVICE AND COMPLIANCE

I HEREBY CERTIFY that the foregoing it typed in 14 point

proportionally spaced Arial, and is 11,458 words, and that a true and correct

copy of the foregoing was efiled with the Fifth District Court of Appeals, and

a copy served via email to the Attorney General’s Office at

CrimAppDAB@MyFloridaLegal.com, this 8th day of September, 2022.

_/s/ Daniel Tibbitt__________

Daniel Tibbitt

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