New trial ordered in Cape Coral officer shooting

Author: The News Service of Florida
Published: Updated:

An appeals court Wednesday ordered a new trial for a man sentenced to life in prison for the 2011 shooting that wounded a Cape Coral police officer during a traffic stop.

A three-judge panel of the 2nd District Court of Appeal overturned the conviction of Yousel L. Rivera, now 26, because a circuit judge failed to give a jury instruction about whether Rivera knew the victim was a police officer.

Yousel L. Rivera

Rivera was convicted of attempted first-degree murder of a law-enforcement officer with a firearm, a crime that carries a mandatory life sentence. Rivera shot Officer David Wagoner during an April 2011 traffic stop in which Rivera was a front-seat passenger of a car, according to a Cape Coral police news release at the time.

As Wagoner approached the passenger window to get Rivera’s identification information, he was shot three times in the torso. Wednesday’s appeals-court opinion said the defense contended that Rivera lacked the intent to shoot the officer and was suffering from a seizure condition at the time.

In overturning the conviction, the appeals court cited precedent from a Florida Supreme Court ruling in March in an Orange County case involving the attempted murder of a police officer.

“Here, Rivera requested a jury instruction on the essential element of knowledge,” said Wednesday’s ruling, written by Judge Morris Silberman and joined by judges Stevan Northcutt and Robert Morris. “In addition, whether Rivera had knowledge that the victim was a law enforcement officer at the time of the shooting was a disputed issue based on the defense that Rivera was suffering from a complex partial seizure and that the shooting was an automatism, an automatic but not conscious behavior. Thus, because the essential element of knowledge was in dispute, the failure to properly instruct the jury on the element of knowledge amounts to fundamental error.”

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