IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC TYRA WILLIAMS, Petitioner, vs. STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC TYRA WILLIAMS, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION PAMELA JO BONDI Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No MELANIE DALE SURBER Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS....1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OF PIERRE-CHARLES V. STATE, 67 So. 3d 301(Fla. 2d DCA 2011) (RESTATED) CONCLUSION... 6 CERTIFICATE OF TYPE SIZE...7 CERTIFICATE OF SERVICE...7 i

3 Cases TABLE OF AUTHORITIES Ellis v. State, 622 So.2d 991, 996 (Fla.1993)... 3 Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003)... 4 Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003)... 4 Pierre-Charles v. State, 67 So. 3d 301(Fla. 2d DCA 2011)... 3, 5 State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)... 4 Welty v. State, 402 So.2d 1159, (Fla.1981)... 4 ii

4 PRELIMINARY STATEMENT Petitioner was the Defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal. In this brief, the parties shall be referred to as they appear before this Honorable Court except that Petitioner may also be referred to as the State. In this brief, the symbol "A" will be used to denote the appendix attached hereto. STATEMENT OF THE CASE AND FACTS The only relevant facts to a determination of this Court=s discretionary jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution are those set forth in the order issued by the Fourth District Court of Appeal. A copy of the opinion is contained in the appendix to this brief. 1

5 SUMMARY OF THE ARGUMENT In this case, the decision of the Fourth District Court of Appeals correctly states and applies the law based on the facts as outlined in the District s order. This Court must decline to exercise jurisdiction as petitioner has improperly argued her case on the merits and fails to explain what conflict, if any, exists with the Court s decision of Pierre-Charles v. State. This argument is contrary to this Court s precedent and this Court must decline to exercise jurisdiction. 2

6 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OF PIERRE-CHARLES V. STATE, 67 So. 3d 301(Fla. 2d DCA 2011) (RESTATED) Petitioner claims that the opinion of the Fourth District Court of Appeal is in conflict with this Court s opinion in Pierre- Charles v. State, 67 So. 3d 301(Fla. 2d DCA 2011). Contrary to Petitioner s claims, the decision of the Fourth District Court of Appeals correctly states and applies the law based on the facts as outlined in the District s order and does not conflict with the decision of the Second District Court of Appeal. In Pierre-Charles v. State, 67 So. 3d at , the Second District Court of appeal found as follows: In this case, Andre's head nod was an out-ofcourt statement introduced by the State as an affirmative response to his father's question, Is it Luc? Andre's head nod constitutes hearsay in the form of a nonverbal assertion, and therefore, the trial court erred in admitting the statement. At one point, the State argued that the head nod served only as grounds for impeachment. However, Andre admitted nodding his head, thereby obviating the need for impeachment. Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather to show why the witness is not trustworthy. Ellis v. State, 622 So.2d 991, 996 (Fla.1993). Moreover, Andre's head nod was not introduced to simply attack his credibility; the State wanted the jury to believe in the truthfulness of Andre's prior out-of-court statement. This purpose became apparent in closing arguments when the State 3

7 referred to Andre's videotaped discussion with his father and used the head nod as substantive evidence of defendant's guilt. Accordingly, the State was using the prior statement almost entirely for its substantive effect on the fact finder. At least to this extent, the hearsay rule must remain applicable. Id. A trial court has discretion concerning the admissibility of evidence; however, the boundaries of this discretion are limited by the rules of evidence. Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (citing Welty v. State, 402 So.2d 1159, (Fla.1981)). Here, the trial court erred when it admitted Andre's hearsay statement. See ( hearsay evidence is inadmissible ). In addition, there is a reasonable possibility that the error affected the verdict. Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). The burden to show that error was harmless remains with the State. DiGuilio, 491 So.2d at If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. Id. In this case, we cannot say beyond a reasonable doubt that the error did not affect the verdict. See id. All three inquiries from the jury pertained to Andre's testimony, specifically Andre's response to his father's question, Is it Luc? The judge's rereading of Andre's testimony magnified the error. Whenever improper evidence becomes so prominent a feature of the trial, a court cannot find that the error was harmless beyond a reasonable doubt. Ellis, 622 So.2d at 998. Because the trial court erred in admitting the hearsay statement and because the State failed to show that the error was harmless, we see no alternative but to reverse for a new trial. 4

8 In Pierre-Charles, the Court found that the improperly introduced evidence became a feature of the trial, given the jury s interest in witness testimony. To the contrary, in this case, the Fourth District Court of Appeal did not find the evidence to be a feature of the trial; instead, the Court found that no reasonable juror would have found the improperly admitted evidence even slightly significant. Thus, this case is clearly distinguishable from the decision of Pierre-Charles and the defendant has failed to establish conflict among the case law. This Court must decline to accept jurisdiction. 5

9 CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Respondent respectfully requests this Court DENY Petitioner=s request for discretionary review over the instant cause. Respectfully submitted, PAMELA JO BONDI Attorney General Tallahassee, Florida Melanie Dale Surber Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, FL (561) Counsel for Respondent CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Petitioner=s Brief on Jurisdiction" has been furnished to: Tyra Williams, DC # , Homestead Correctional Institution, SW 377 th Street, Suite 200, Florida City, Fl this day of, CERTIFICATE OF TYPE SIZE AND STYLE MELANIE DALE SURBER In accordance with Fla. R. App. P , the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type. MELANIE DALE SURBER 7