DEFENDANT'S MOTION FOR CLARIFICATION AND FOR SPECIAL JURY INSTRUCTION. COMES NOW, the Defendant, JOHN GOODMAN, by and through his undersigned

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1 Filing # Electronically Filed 09/29/ :56:12 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: CF005829AMB STATE OF FLORIDA, v. JOHN GOODMAN, Defendant. / DEFENDANT'S MOTION FOR CLARIFICATION AND FOR SPECIAL JURY INSTRUCTION COMES NOW, the Defendant, JOHN GOODMAN, by and through his undersigned attorneys, and moves this Honorable Court for clarification of statements made by the Court on September 23, 2014, and for a special jury instruction on the State's intentional release of the Bentley involved in this case, and as grounds therefore the Defendant states as follows: 1. On January 9, 2014, the Defendant filed a Motion to Dismiss based on the State's intentional release of the Bentley involved in this case. 2. The Defendant reiterates and reasserts all of the arguments contained within the aforesaid Motion to Dismiss and the Motion for Reconsideration of the Order Denying the Motion to Dismiss. Those motions asserted that the Bentley, after its release by the State, was purchased at auction by a private party in Sugarland, Texas. When the car arrived there, the Electronic Control Modules (ECMs) had been removed. The State does not dispute either assertion. 3. On March 17, 2014, this Court issued its Order denying the Defendant s

2 Motion to Dismiss. 4. However, the Court held that "the Defendant is not precluded from sharing with the jury the fact that the Bentley (and the victim's vehicle) are no longer available for inspection since they were prematurely released by the State." Even in the absence of a finding of bad faith, the defense is still entitled to a remedial jury instruction. U.S. v. Sivilla, -- F.3d ---, 2013 WL (9th Cir. 2013). 5. During a hearing on September 23, 2014, on the Defendant's Motion to Require the State to Disclose The Reasons For Withdrawing Thomas Livernois as a Witness, and the Defendant's Motion for Reconsideration of the Order Denying the Motion to Dismiss, referenced in Paragraph 1 herein, the Court made statements indicating that should the defense argue that the State released the Bentley, the Court would consider that as having opened the door to allowing the State to defend its decision by informing the jury that there had been a prior trial. 6. The Defendant filed a Motion for Individual and Sequestered Voir Dire of Prospective Jurors on January 13, The Motion referenced the fact that almost every single news account regarding the instant case includes a paragraph that Mr. Goodman was previously convicted and sentenced to 16 years in prison. This information is prejudicial and is not admissible at trial. The Court has already recognized the indisputably prejudicial effect that knowledge of Mr. Goodman s previous conviction would have on any potential juror, and has accordingly agreed that any potential juror who has heard that there was a prior trial and conviction would be automatically excluded for cause. 7. In its Order denying the Defendant's Motion to Dismiss, the Court held that the defense "is not precluded from sharing with the jury the fact that the Bentley (and the victim's vehicle) are no longer available for inspection since they were prematurely released by the State."

3 8. The defense has been preparing its case in reliance on the Court's Order that "the Defendant is not precluded from sharing with the jury the fact that the Bentley (and the victim's vehicle) are no longer available for inspection since they were prematurely released by the State." 9. To withdraw the right to inform the jury that the State prematurely released the cars at this stage impairs the defense s constitutional right of cross examination of witnesses and ability to present its defense that resulted from the release of the Bentley. 10. While the Court has decided, as a legal matter, that there was insufficient evidence to warrant dismissal, the Court previously recognized that the defense should have the opportunity to present the evidence of the release of the car to the jury. The Bentley is no longer in the same condition it was when in the PBSO impound lot, preventing the defense from conducting a complete and thorough inspection. 11. Furthermore, in order for the both the State and defense to present expert testimony on the functioning or malfunctioning of the Bentley, there is no way to do so without explaining the fact that the Bentley is now in a private garage in Sugarland, Texas and not in the same condition it was after the accident. Indeed, in order for the State to elicit an expert opinion, the expert must testify that he inspected the Bentley in a private garage in Sugarland, Texas, and that the electronic control modules (ECMs), were not in the Bentley when it arrived there. There is no way to explain why the Bentley is in Texas, and not in the PBSO impound lot, without informing the jury that the Bentley was released by the State. The defense had nothing to do with the release of the Bentley, and in fact, did not know the Bentley had been released until over a year after its release.

4 12. If the Court rules that the mere mention of the State's release of the Bentley opens the door to informing the jury of the prior trial, the Court would, in effect, penalize the Defendant for the action of the State in "prematurely" releasing the Bentley, and preclude Mr. Goodman from effectively presenting his defense 13. The defense requests that this Court adhere to its previous ruling that the defense be allowed to inform the jury through testimony and argument that the Bentley was "prematurely" released by the State. The defense should also not be precluded from discussing the car s release and how the missing components prevented the defense from performing additional testing. 14. It is respectfully submitted that the Court should direct the parties herein that any and all references to the prior trial should be couched in terms of a prior hearing, and that both parties need to admonish their witnesses not to mention the prior trial, and most certainly, never to reference a prior conviction. It is respectfully submitted that any testimony suggestive of a prior trial would lead the jury to the inescapable conclusion that Mr. Goodman had been previously tried and convicted, which is irretrievably prejudicial. 15. It is certainly conceded that not all inadvertent references to a prior trial are prejudicial. See Daniels v. State, 954 So. 2d 718, (Fla. Dist. Ct. App. 3d Dist.2007); See also Cook v. State, 632 So. 2d 86, 1994 (Fla. Dist. Ct. App. 3d Dist.1994). However, all Courts agree that testimony or evidence suggestive of a prior conviction is unconscionably prejudicial. Indeed, in Hughes v. State, 490 A.2d 1034, (Del. 1985), the Delaware court observed that, "we are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged. It seems unreasonable to expect a juror to divorce from his deliberative process, knowledge that a defendant had been

5 previously tried and convicted, and following a reversal has been once again subjected to prosecution. The mere expenditure of so much time and expense on the part of the state might lead the average lay person to assume that such a defendant must, in fact, be guilty." at In Jackson v. State, 545 So. 2d 260, 263 (Fla.1989), the Florida Supreme Court held that, The prejudicial effect upon a jury of testimony that a defendant has been previously convicted of the crimes for which he is now on trial is so damaging that it cannot be said beyond a reasonable doubt that a jury would return a verdict of guilty absent the testimony. 17. In the instant case, references to a prior trial made in the context of the release of the vehicle would lead the jury to the inescapable conclusion that Mr. Goodman had been previously convicted and that it was due to the conviction that the State believed Mr. Goodman no longer needed the car. Again, in Hughes, the Court held that when prejudicial information is acquired by jurors during trial, there is a high risk that the prejudicial information will be held against the accused. The Court noted, "Such situations call for an even stricter standard than those in which the information was already known on account of pretrial situations." Hughes v. State, 490 A.2d at In referencing Hughes, the Court in Bailey v. State noted that, the decisions of the United States Supreme Court in cases involving possible juror bias are consistent [1077] with our own and support the same conclusion Bailey v. State, 521 A.2d 1069, (Del.1987). 18. Accordingly, while not waiving any previous objections, motions or arguments, it is respectfully requested that this Court instruct the jury that the cars were prematurely released without proper notice to the defense and the Court; that the State and the defense instruct their witnesses to not refer to the prior trial, but instead refer to a prior hearing ; and that certainly nothing be said about a prior conviction.

6 WHEREFORE, based upon all matters recited herein, as well as possible evidence to be presented at a hearing, this Court is respectfully requested to grant the relief requested herein. I HEREBY CERTIFY that a true copy of the foregoing was ed/Eservice this 29 th day of September, 2014, to: ALAN JOHNSON, ESQ. and SHERRI COLLINS, ESQ., ASAs, ajohnson@sa15.org and scollins@sa15.org, 401 North Dixie Highway, West Palm Beach, Florida Respectfully submitted, LAW OFFICE OF SCOTT N. RICHARDSON, P.A Forum Way, Suite 720 West Palm Beach, FL scott.neil.richardson@gmail.com (Primary) hodgkinsm@gmail.com (Secondary) FAX By /s/ Scott N. Richardson SCOTT N. RICHARDSON, ESQ. Fla. Bar No: ROTH & DUNCAN, P.A. 515 North Flagler Drive Northbridge Centre, Suite 325 Post Office Box 770 West Palm Beach, FL By /s/ Douglas Duncan DOUGLAS DUNCAN, ESQ. Fla. Bar No.: LAW OFFICE OF ELIZABETH PARKER, P.A. 515 North Flagler Drive Northbridge Centre, Suite 325 West Palm Beach, FL By /s/ Elizabeth Parker ELIZABETH PARKER, ESQ. Fla. Bar No.: