SOUTH FORT MYERS, Fla. There are cupcakes, balloons and gifts scattered around. Everything needed for an anniversary celebration.
Kayla Stone and Eddie Powell’s one year old son is even there to celebrate with his Daddy. But it’s not a typical celebration. It’s happening at a cemetery.
Powell was Stones’s high school sweetheart, and by age of 20 the two were expecting their first child.
“Everyone called him Chico, so now we call our son ‘Little Chico’,” she said. But Chico never had a chance to meet Little Chico. On May 15, 2016 he was shot while leaving the Hookah Lounge nightclub near Island Park Road in south Fort Myers.
Stone got a call close to four in the morning urging her to come to the hospital. She said witnesses and paramedics could hear Powell yelling “don’t let me die, my son is about to be born”.
When she got to the hospital he was in surgery, but he didn’t make it through and she never got to say goodbye.
An arrest, and then a release
Powell’s cousin told police he witnessed a man with a known dispute with the family pull the trigger.
Abraham Rivera is a convicted felon and the brother of another homicide victim: Izzy Rivera. The family suspected Powell had something to do with the killing, according to Stone.
She recalled an incident where a family member confronted them in a nail salon. But according to Stone, Powell had nothing to do with the killing of Rivera’s brother.
A Lee County Sheriff’s Office report stated that just two weeks before Powell was killed the
Rivera family made death threats toward Powell. It also explained that on that same day multiple shots were fired outside the Powell residence.
The appearance of a motive and an eye witness were enough for the Sheriff’s office to make an arrest.
Abraham Rivera was located and taken into custody the day after Powell was killed.
But by October 2016, he was free to go.
In August 2017, he was sentenced in an armed burglary and robbery case to ten years in prison. He is currently incarcerated at the Cross City Correctional Institute.
The State Attorney’s Office for the 20th Judicial Circuit decided not to file murder charges against Rivera due to insufficient evidence to prove the case beyond a reasonable doubt.
In a close-out memo, prosecutors wrote that Rivera had an alibi and no physical evidence connecting him to the scene. Furthermore, no other witnesses reported seeing him pull the trigger besides Powell’s cousin.
“I just know someone else out there saw something. We need them to come forward,” said Stone.
Insufficient Evidence in Serious Felonies
A WINK News Investigation looked at a year’s worth of cases from 2016 where someone faced either life in prison or the death penalty using date obtained from the State Court Administrator.
The investigation found that the State Attorney’s office for the 20th Judicial Circuit either did not file charges or chose not to prosecute charges in those serious felony cases 91 times in 2016.
A large bulk of those charges were cleared because the defendant pled to a lesser offense, and in many cases got jail time.
But twenty four of those cases, including Rivera’s, were not pursued for the same reason: insufficient evidence to prove beyond a reasonable doubt.
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Those cases include armed burglaries, robberies with firearms and sexual assault of children.
In the case of Agustin Marquez, who is accused of raping a child, the prosecutors wrote in case notes that issues with the victim’s family were complicating the case.
The notes show that they told her they believed her but they did not feel they could win the case. Marquez case was nolle prossed in April 2016.
“When you can’t go forward with one of these cases, it was, at least it was personally to me,it was heartbreaking,” said Teresa Drake, a former prosecutor and professor at the University of Florida law school.
Drake said child rapes can be especially difficult to prosecute because often times it would do the victim an enormous amount of harm to put them on the stand to testify.
In general, she said prosecutors have to lean on the side of protecting the rights of the innocent because they are dealing with taking away someone’s freedom.
For example, in 2016, a woman was arrested for burglary with assault which carries a potential sentence of life in prison.
Prosecutor case notes show that the case involved a woman who had taken her boyfriend’s phone, and threw it at him. He decided he didn’t want to press charges so the state did not pursue the case.
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When it comes to murder cases, however, Drake said in her experience it was very rare for a case to be presented with insufficient evidence.
“As a prosecutor if you have a good law enforcement agency, you are getting the best of what they have in their detectives to wrap this case up and give it to you in a bow basically,” she said.
State attorney Stephen Russell declined multiple requests for an interview on this story. In a three page-emailed response, he referred to the case notes and close-out memos on the Rivera and Marquez cases but would not elaborate further on his office’s decision.
DOCUMENT: State Attorney Stephen Russell’s response
He also pointed out rules for prosecutors set up by the American Bar Association which say the prosecutor should only file criminal charges if they believe there is probable cause and admissible evidence will be sufficient to support conviction beyond a reasonable doubt.
Differing standards of Evidence
Stone said she wished that the Lee County Sheriff’s Office had done a better job investigating the case to bring more evidence to the State Attorney’s office. The Sheriff’s Office decline to be interviewed for this story. Powell’s homicide case is still open.
However, the head of the Gulf Coast Police Benevolent Association said law enforcement in Southwest Florida is conducting thorough investigations.
Matt Sellers was a homicide detective for the Fort Myers police department before retiring and taking on his role with the union. He said he and many officers he represents wish the state would allow a jury to decide if a case has enough evidence.
“I think a lot of our frustration is there should be some cases where they should take a few more chances,” said Sellers. He said he sees the other side of it also because police have a different standard to use when making an arrest than the state has for pursuing a criminal case.
“A lot of people get arrested several times. It’s very easy to reach probable cause. What would warrant a reasonable person to believe a crime was a committed? Did he probably do it? That’s easier to come to than did he do it beyond a reasonable doubt,” he said.
In 2016, John Davis was arrested for robbery with a firearm. Davis has been arrested dozens of times since the 1990’s and multiple times since his 2016 arrest.
Many of his arrests resulted in no charges being filed, or the case being dropped. In 2016, the state did not file the burglary charge when the victim and only witness changed their story.
State Attorney Russell said the lack of any other corroborating evidence led to his office’s decision on the case.
Sellers said families of crime victims whose cases are still unresolved should just hope that investigators keep their cases open.
WINK News attempted to contact John Davis, Abraham Rivera and Agustin Marquez but did not hear back.