IN THE SUPREME COURT OF FLORIDA. ULYSSES GONZALEZ, S.Ct. NO: SC th DCA NO: 4D Petitioner, Lower Ct. No: CF 10A

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1 IN THE SUPREME COURT OF FLORIDA ULYSSES GONZALEZ, S.Ct. NO: SC th DCA NO: 4D Petitioner, Lower Ct. No: CF 10A v/ STATE OF FLORIDA, Respondent. / PETITIONER S AMENDED INITIAL BRIEF ON JURISDICTION Petition for Discretionary Review of the District Court of Appeals, Fourth District Court of Florida MICHAEL D. GELETY, ESQ. Attorney for Petitioner 1209 SE 3rd Avenue Ft. Lauderdale, FL (954)

2 TABLE OF CONTENTS Page No: TABLE OF CITATIONS CERTIFICATE OF INTERESTED PARTIES... 3 STATEMENT OF JURISDICTION... 4 PRELIMINARY STATEMENT... 4 STATEMENT OF THE CASE... 5 STATEMENT OF THE FACTS... 6 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 CONCLUSION CERTIFICATE OF SERVICE STATEMENT OF COMPLIANCE RE: TYPE SIZE/STYLE

3 TABLE OF CITATIONS Case Authority: Page No: Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986) Garcia v. State, 816 So.2d 554 (Fla. 2002), p Gonzalez v. State, 871 So.2d 1010 (Fla. 4th DCA 2004)... 4, 19 Larzelere v. State, 676 So.2d 394 (Fla. 1996)... 13, 15, 17, 18, 25 Lott v. State, 695 So.2d 1239 (Fla. 1997)... 13, 15, 17, 22-23, 25 Morrison v. State, 818 So.2d 432 (Fla. 2002), cert denied 123 S.Ct. 406 (2002)... 16, 17 Other Case Authorities: Charles W. Ehrhardt, Florida Evidence at 501 (2002 Ed.) Florida Rules of Appellate Procedure 9.030(a)(2)(A)(IV)... 4 Florida Statutes , 19 2

4 CERTIFICATE OF INTERESTED PARTIES COMES NOW the Petitioner, Ulysses Gonzalez, and lists those parties who may have an interest in the outcome of this Petition: August Bonavita, Assistant Attorney General Charles Christ, Attorney General Gerald Cunningham, Defense Attorney Stacey DiRenzo, Prosecutor Michael D. Gelety, Petitioner s Attorney Ulysses Gonzalez, Petitioner Robert M. Gross, Appellate Judge, Fourth District Court of Appeal Alfred Horowitz, Trial Judge Georgina Jiminez-Orosa, Assistant Attorney General Michael Satz, Broward State Attorney W. Matthew Stevenson, Appellate Judge, Fourth District Court of Appeal Martha Warner, Appellate Judge, 4th District Court of Appeal 3

5 STATEMENT OF JURISDICTION The Florida Supreme Court has discretionary jurisdiction to review the decision of the Fourth District Court of Appeals in this matter, as it expressly and directly conflicts with decisions of the Supreme Court and other Courts of Appeal on the same point of law. Florida Rule of Appellate Procedure 9.030(a)(2)(A)(IV). PRELIMINARY STATEMENT The Petitioner, Ulysses Gonzalez, was the Defendant in the trial court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case Number CF 10A, Judge Alfred Horowitz presiding, and was the Appellant in the District Court of Appeals, Fourth District of Florida, Case Number 4D , Gonzalez v. State, 871 So.2d 1010 (Fla. 4th DCA 2004). The Respondent, State of Florida, was the Plaintiff in the trial court and the Appellee in the Court of Appeals. They will be referred to in this brief as the Petitioner or Gonzalez, and the Respondent or State. References to the record on appeal will be as follows: (R., Tr. vol. I, pg. 14). 4

6 STATEMENT OF THE CASE The Petitioner was charged by Information with two counts of capital sexual battery upon a child less than 12 years old and six related counts (R. Tr. vol. I, p. 7). Trial began on April 16, 2002, with verdicts of guilty as charged on all counts on August 26, 2002 (R., Tr. vol. I, p ), and on October 8, 2002, the Petitioner, was sentenced to life in prison with no possibility of parole on Counts I and II (the capital sexual battery counts),and concurrent prison sentences on the other counts, (R. Tr. vol. I, p ). The Petitioner, Gonzalez, was found indigent for appeal (R., Tr. vol. I, p. 196), and on April 21, 2004, the Fourth District Court of Appeals affirmed the judgment and sentence, specifically upholding the exclusion of the defense proffered evidence regarding the reputation of the young girl/victim in this case (see Appendix) and on May 18, 2004, the Petitioner s motions for rehearing and certification were denied. Mandate was issued on June 4, Petitioner filed his timely notice and jurisdictional brief with this court, and pursuant to this Court s order of July 26, 2004, this Amended Initial Brief is filed. The Appellant remains incarcerated at this time. 5

7 STATEMENT OF THE FACTS The Petitioner, Ulysses Gonzalez, a 32-year old man, was convicted of having sexual relations with Nesvi Gonzalez, the sister of his wife Xiomara, both before and after she was 11 years old (R., Tr. vol. V, p. 249, ). On July 6, 2001, Nesvi lived with her mother and father in the apartment directly next door to that of the Petitioner and his wife (R. Tr. vol. V, p. 346, 384). It was acknowledged that it was very normal for Nesvi to be at the apartment of the Petitioner and Xiomara, and, in fact, it was very common for Nesvi to come to the apartment to take a shower, and that Nesvi was at the apartment almost every day (R., Tr. vol. V, p. 305, 326, 390). On July 6, 2001, Petitioner s wife, Xiomara, came home from work early and saw the Petitioner and Nesvi, on the floor as if they were looking for something (R., Tr. vol. V, p ). The Petitioner left the room while Nesvi, with a blanket over her legs, was trying to put on her shorts (R., Tr. vol. V, p. 350, 352). Xiomara felt there was nothing unusual, and there was nothing odd about Nesvi s physical demeanor but Xiomara became concerned when Nesvi said she had just taken a shower, but her hair wasn t wet - and she ordered the younger sister to lie on the bed so that she could check between her legs (R., Tr. vol. V, p. 350, 353, 355, 386). Nesvi was a little red in the vaginal area, but it was normal and the white stuff in the area certainly didn t look like semen (R., Tr. vol. V, p , 362). 6

8 Both the Petitioner and Nesvi consistently told Xiomara that nothing was happening, just horseplay, even with the Petitioner, urging Nesvi to tell the truth.(r. Tr. vol. V, p. 308, , 323, 353, ) but after a week of constant questioning and pressure by her sister-in-law, Anna Gonzalez, Nesvi changed her story completely and now claimed sexual activity between her and the Petitioner on July 6, 2001 (R., Tr. vol. I, p ; vol. V p. 312). Nesvi s examination at the sexual assault treatment center on July 17, 2001 was normal, with no injuries, no scratches, bruises, tears of the hymen, swelling, etc. (R., Tr. vol. V, p , 422, 425) neither confirm nor negating the allegations. vol. V, p. 343 There was much confusion and uncertainty about timing and dates (R. Tr. vol. V, p. 361, 378, 405). Because Nesvi was the only witness against the Petitioner (Xiomara saw nothing and the medical exam normal ) Nesvi s credibility was the key to the case. The defense proffered testimony of Xiomara, regarding Nesvi s reputation in the family and at school as a liar but the trial judge excluded the evidence, ruling that family/school reputation was too narrow, not a sufficient community as that is loosely used within reputation testimony (R., Tr. vol. V, p , ,372). The Fourth District affirmed, refusing to consider the tender age of the victim, as it related to a reasonable community in which her reputation for truthfulness would be legitimately known applying an unreasonable, inflexible and unworkable definition 7

9 of community, creating conflict with this court s opinions in Larzelere v. State, 676 So.2d 394 (Fla. 1996) and Lott v. State, 695 So.2d 1239 (Fla. 1997). SUMMARY OF THE ARGUMENT The credibility of the sole witness (14 years old) against the Petitioner, was critical in this matter, and the right to attack this credibility and believability through reputation evidence was crucial to the Petitioner s right to a fair trial. Because of the witness s tender years, her exposure to the normal community was minimal - and further limited by the very close extended family in which she spent virtually all of her time. Although the victim s reputation as a liar within her family and at her school was established, the trial court rejected this predicate as too narrow for a community predicate. In affirming, the Fourth District created an inflexible and unworkable rule regarding the extent and breadth of community required as a predicate for reputation testimony about a young child, and created a conflict with this court s decisions in Larzelere v. State, supra, and Lott v. State, supra. This court must accept jurisdiction to review this important aspect of evidentiary law, to eliminate the conflict mentioned above, and further, to specifically address the increasingly common questions dealing with the credibility of witnesses/victims too young to have an established broad community for the purposes of reputation 8

10 testimony. ARGUMENT This court has long held that for impeachment evidence dealing with reputation for truthfulness to be admitted before a jury: Essentially, it must be established that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment. Larzelere v. State, supra, p This requirement for a community-based reputation is designed to ensure accuracy or at least a factual basis for reputation testimony - to guard against testimony or evidence predicated upon mere personal opinion, fleeting encounters or rumor. Lott v. State, 695 So.2d 1239 (Fla. 1997), p It is clear that this court, in Larzelere, and Lott, reasonably and logically focus upon the ills and dangers to be avoided when dealing with reputation evidence - establishing a workable tension between the accused s need to constitutionally confront witnesses, and the trial court s duty to ensure the reliability of evidence being brought before the jury. The focus is not, and never has been, on the establishment or satisfaction of a type of mechanical or artificial checklist to be blindly followed, with no regard to the singular circumstances of the case being tried. The Fourth District in this case, has created conflict by explicitly rejecting 9

11 consideration of individual factors, specifically, the tender years of a witness in question and the restricted exposure to the standard community by the witness, rejecting the obvious truism that the determination of a community for the purpose of reputation evidence dealing with a child must be considered in a different and more flexible fashion: However, a witness s youth does not contract the breadth of community necessary for impeachment. (opinion, page 1, see Appendix). This statement is not limited to the unique facts in Gonzalez, but instead, creates a bright line test for admissibility of evidence, such test specifically excluding the trial court s consideration of important factors which establish community - including the age and social exposure of a child witness. This court is reminded that Xiomara is Nesvi s older sister, and certainly is in a position to learn of Nesvi s general reputation in a community over a period of time and through miscellaneous contacts with many people, and was not giving mere personal opinion, fleeting encounters or rumor, as was the concern of this court in Lott, supra, p Quite the contrary, under the facts of this case, Xiomara was in a singular position to know and to testify about her younger sister s reputation in the limited community in which the child lived and functioned. 10

12 CONCLUSION The opinion of the Fourth District Court of Appeals regarding the Petitioner s case directly and dangerously conflicts with this court s long-established precedent in Larzelere and Lott, establishing a blanket rule of exclusion which will prevent trial courts from considering and admitting unusual circumstances dealing a child s reputation for truthfulness in the child s necessarily limited community. The tension must be maintained between the constitutional right of confrontation of an accused and the case-by-case determination of the reliability of reputation evidence - a procedure which must not be allowed to be aborted by artificial restrictions as set forth in the opinion in question. Cases in which children are complaining witnesses and victims are increasing throughout the state, and the critical issue of when impeaching reputation evidence should be admitted is an issue of great public importance which must be addressedby this court in resolving these conflicts. 11 Respectfully submitted, MICHAEL D. GELETY, ESQ. Attorney for Petitioner 1209 SE 3rd Avenue Ft. Lauderdale, FL (954)

13 Florida Bar # CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 3rd day of August, 2004 to the Attorney General s Office, 1515 North Flagler Drive, 9th Floor, West Palm Beach, FL MICHAEL D. GELETY STATEMENT OF COMPLIANCE REGARDING TYPE SIZE AND STYLE COMES NOW the Petitioner, Ulysses Gonzalez, and certifies that the type size and style used in this Brief on Jurisdiction is within the requirements of this court s internal operating system, specifically, Times New Roman 14-point. 12

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