Attorneys for Jose Javier Alfaro argue the Parkland man’s second-degree murder with a firearm conviction should be thrown out and a new jury trial ordered in Palm Beach County Circuit Court because of prosecutorial misconduct and the exclusion of testimony that supported his defense.
Alfaro’s claims come in advance of his Jan. 25 sentencing date, when the 31-year-old faces a mandatory prison term of 25 years to life. Circuit Judge Richard Oftedal is expected to consider the defense’s request before imposing the sentence.
On Nov. 13, a 12-member jury found Alfaro guilty of the 2007 execution-style slaying of Stephen Febonio, 45, of west Boynton Beach, though it was not the first-degree murder conviction sought by the prosecution.
During a six-day trial, Alfaro testified he ran a marijuana growhouse business in Broward and Palm Beach counties, but he accused an associate of killing Febonio and stuffing the victim’s body in a freezer chest. Alfaro never told police about the crime before his arrest in August 2009 or at any time before his trial.
What happened after Alfaro’s courtroom testimony is the crux of the motion for the new trial, as well as an earlier request for a mistrial, sought by attorneys Michael B. Cohen and Eileen Landy.
The defense argues statements made by prosecutors during cross-examination of Alfaro, and during closing arguments, suggested to the jury that Alfaro had to prove his own innocence, shifting the burden away from the prosecution’s role of proving guilt.
The prosecutors challenged Alfaro over his silence and “asked the jury to question” why Alfaro, if he was innocent, didn’t come forward at any time with evidence implicating the other man, named Doctor Travis Morrow, Cohen and Landy contend.
“It cannot be said without a reasonable doubt that the prejudicial comment did not contribute to the verdict,” they wrote.
The defense also said prosecutors shouldn’t have made such statements in light of Alfaro’s Fifth Amendment right to remain silent and they tried to discredit Alfaro’s testimony as “newly contrived.”
Aleathea McRoberts, the lead assistant state attorney on the case, could not be reached for comment on the defense’s claims, despite calls to her office.
Febonio was shot once in the back of his head in August 2007. In March 2009 Palm Beach County Sheriff’s Office detectives dug up the freezer from the yard of a house in Delray Beach once leased by Alfaro.
Alfaro said Morrow, his growhouse partner, killed Febonio in self-defense in the garage of Alfaro’s home in Parkland’s Heron Bay community.
Testifying for the prosecution, Morrow said Alfaro told him he killed Febonio. Morrow also said he never called the police because he didn’t think Alfaro actually did it.
McRoberts said Alfaro killed Febonio over a $10,000 debt he owed Febonio, and Febonio’s threat to call the Drug Enforcement Administration.
The defense also claims Judge Oftedal erred by not allowing jurors to hear a witness talk about a alleged conspiracy by Morrow and others to frame Alfaro for the murder.
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