IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT PALM BEACH NEWSPAPERS, LLC, d/b/a The Palm Beach Post, Petitioner, vs. CASE NO. 4D STATE OF FLORIDA, JAMAL DAVID SMITH, AND FREDERICK COBIA Respondents. SMITH S RESPONSE TO THE PETITION Jamal David Smith, through counsel, files this response and states that he agrees with the petition that Judge Cox s November 30, 2015, order should be reversed and quashed. He writes to address two matters raised by Judge Cox s order and the alternative remedy proposed in Cobia s response. Judge Cox s order suggests that Smith s lawyer did something untoward in inspecting and copying Frederick Cobia s recorded jail calls. See Appendix A.1 at page 2. For at least five reasons, Smith s lawyer did nothing untoward in this regard. First, as Petitioner persuasively argues, these recorded phone calls, even if 1

2 they are not public records, are not privileged and Cobia has no reasonable expectation of privacy in them because he knew they were being recorded and monitored. The three cases Petitioner relies upon make this clear. Mosely v. State, 46 So. 3d 510, 524 (Fla. 2009; McWatters v. State, 36 So. 3d 613, 636 (Fla. 2010; Jackson v. State, 18 So. 3d 1016, (Fla Second, Florida Rule of Criminal Procedure 3.220(b(1(B allows defense counsel to inspect, copy, etc., any written or recorded statement of a Category A witness. Cobia is a Category A witness, and these are his recorded statements. See State v. Fernandez, 141 So. 3d 1211, 1218 (Fla. 2d DCA 2014 ( With regard to the statements of witnesses, the prosecution need not disclose such statements unless the statements are written, recorded, or otherwise reduced to writing. (e.s.. And although these recordings were kept by the Sheriff s office, the State is charged with constructive possession of all information and evidence in the hands of its agents, including police. Feast v. State, 126 So. 3d 1168, (Fla. 4th DCA 2012 (quoting Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA Third, Florida Rule of Criminal Procedure 3.220(b(1(M(iv requires the State to disclose whether it has any material or information that has been provided by an informant witness, including... whether the informant witness has received, 2

3 or expects to receive, anything in exchange for his or her testimony. Cobia is an informant witness, and these phone calls are evidence that he has received or expects to receive something in exchange for his testimony. 1 See Appendix A.2. Fourth, even if Smith were not participating in discovery, the State would have an affirmative duty to disclose these recordings, showing as they do the extraordinary range of preferred treatment that Cobia has received and is receiving. See Appendix A.2. Prosecutors have an affirmative duty to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. United States v. Bagley, 473 U.S. 667, 675 (1985; see also Brady v. Maryland, 373 U.S. 83 (1963. Favorable evidence includes impeachment evidence, including any benefits or promises of future benefits given to witnesses in exchange for their 1 In 2010 the supreme court created the Florida Innocence Commission to conduct a comprehensive study of the causes of wrongful conviction and of measures to prevent such convictions. In re: Florida Innocence Commission Administrative Order No. AOSC In its 2012 Report, the Commission identified informant-witness testimony as a substantial cause of wrongful convictions. See FLORIDA INNOCENCE COMMISSION, FINAL REPORT TO THE SUPREME COURT OF FLORIDA, at pages (2012, available at (site visited December 10, Among other things, the Commission recommended amending the discovery rule to require the State to disclose information from and about informant witnesses. These recommendations were implemented in In re Amend. To Rule of Crim. Proc , 140 So. 3d 538 (Fla

4 testimony. Bagley, supra, at 676, In addition, Florida Rule of Criminal Procedure 3.220(b(4 places an affirmative duty on the State to disclose evidence that tends to negate the defendant s guilt. This rule is similar to, but broader than, Brady and Bagley. It does not require a strict showing that the evidence negates guilt. See Perdomo v. State, 565 So. 2d 1375, 1376 (Fla. 2d DCA 1990 ( While the reports were of debatable exculpatory value, appellant should have had benefit of the information contained within them. ; Giles v. State, 916 So. 2d 55, 58 (Fla. 2d DCA 2005 ( Although the information does not appear to fit any of the other categories listed in rule 3.220(b(1, it could constitute exculpatory information, whose disclosure is required by rule 3.220(b(4.. Fifth, had Smith discovered these recordings after he was convicted, he could file a motion for new trial based on newly discovered evidence under Florida Rule of Criminal Procedure 3.600(a(3 or 3.850(b(1. But these rules require the party to exercise due diligence; had Smith s lawyer not made diligent efforts to obtain this important exculpatory evidence, the State would oppose the motion on that ground. Needless to say, Smith s lawyer cannot be faulted for diligently investigating the State s case. 2 2 Instructive here is ABA Standard 4-4.1(c, which states in part: Defense 4

5 Judge Cox also prohibited Petitioner, the Office of the Public Defender, and others from publishing or disclosing the [the jail recordings] in any way to any third party. Appendix A.1. at page 3. If Judge Cox means by this that Smith s lawyer is prohibited from confronting Cobia at trial with the statements he made on these phone calls, such a ruling would violate Smith s due process and confrontation clause rights. See Davis v. Alaska, 415 U.S. 308 (1974; Powell v. Foxman, 528 So. 2d 91 (1988 (holding that criminal defendant was entitled to recorded testimony of minor victim given at dependency hearing. Again, that these phone calls are not public record, State v. Bent, 46 So. 3d 1047 (Fla. 4th DCA 2010, does not mean that they are privileged or that Cobia had a reasonable expectation of privacy in them, or that they are not discoverable to Smith, who is a party to the criminal case. Finally, Smith opposes the alternative remedies suggested by Cobia. Cobia s Response at pages 6-7. These matters are beyond the scope of the petition. Moreover, no evidentiary hearing into the means by which Mr. Smith s counsel obtained the transcripts (id. is required for the five reasons stated above. counsel s investigation of the merits of the criminal charges should include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation. ABA Standards for Criminal Justice: Prosecution Function and Defense Function, std (c (4th ed

6 Respectfully submitted, CAREY HAUGHWOUT Public Defender Fifteenth Judicial Circuit 421 Third Street West Palm Beach, Florida ( /s/ PAUL EDWARD PETILLO Paul Edward Petillo Assistant Public Defender Florida Bar No

7 CERTIFICATE OF SERVICE I certify that this response was electronically filed with the Court and a copy of it was served by to Celia Terenzio, Assistant Attorney General, Office of the Attorney General, Ninth Floor, 1515 N. Flagler Drive, West Palm Beach, FL (CrimAppWPB@MyFloridaLegal.com; Valerie Masters, 301 Clematis St., #3000, West Palm Beach, FL (mastersv@bellsouth.net; Andrew Slater, 401 North Dixie Hwy., West Palm Beach, FL (felmcu@sa15.org; and to L. Martin Reeder., Jr., & C. Bryce Albu, 250 S. Central Blvd, Suite 200, Jupiter, FL (martin@reederandreeder.com & bryce@reederandreeder.com, this 23rd day of March, /s/ PAUL EDWARD PETILLO Paul Edward Petillo Fla. Bar No appeals@pd15.org ppetillo@pd15.state.fl.us CERTIFICATE OF COMPLIANCE I certify that this response was prepared with 14 point Times New Roman type in compliance with Florida Rule of Appellate Procedure 9.100(l. /s/ PAUL EDWARD PETILLO PAUL EDWARD PETILLO 7