IN THE SUPREME COURT OF FLORIDA CASE NO.: SC DISTRICT COURT OF APPEAL CASE NO.: 3D THE STATE OF FLORIDA, Petitioner, -vs-

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC DISTRICT COURT OF APPEAL CASE NO.: 3D THE STATE OF FLORIDA, Petitioner, -vs- HENRY GARY THORNTON, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM, THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT AMENDED ANSWER BRIEF FOR RESPONDENT ON JURISDICTION DAVID S. MOLANSKY, ESQ. Attorney For Respondent David S. Molansky Attorney At Law Biscayne Blvd., Ste. 405 Miami, Florida Fla. Bar No.: Tel.: (305) Fax.: (305)

2 TABLE OF CONTENTS Table of Contents...i Table of Citations...ii,iii Statement of the Case and Facts Summary of the Argument Argument THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISIONS OF THIS COURT, OR DECISIONS OF THE DISTRICT COURTS OF APPEAL, THEREFORE, REVIEW MUST BE DENIED Conclusion...10 Certificate of Service and Compliance...10 i

3 TABLE OF CITATIONS CASES PAGE(S) Aguilera v. Inservices, Inc., 905 So. 2d. 84 (Fla. 2005)...6 Crossley v. State, 596 So. 2d. 447,449 (Fla. 1992)...6 Dade County School Board v. W.Q.B.A., 731 So. 2d. 638 (Fla ,9 Dorminey v. State, 314 So. 2d. 134 (Fla. 1975)...8 Geralds v. State, 674 So. 2d. 96 (Fla. 1996)...9 Occhicone v. State, 570 So. 2d. 902,906 (Fla. 1990)...8,10 Ramirez v. State, 542 So. 2d. 352 (Fla. 1989)...6,8 Ramirez v. State, 651 So. 2d (Fla. 1995)...7,8 Ramirez v. State, 810 So. 2d. 836 (Fla. 2001)...7,8 Riviera v. State, 561 So. 2d. 536,539 (Fla. 1990)...9 Robertson v. State, 829 So. 2d. 901 (Fla. 2002)...9 Steinhorst v. State, 412 So. 2d. 332 (Fla. 1982)...9 Thornton v. State, 852 So. 2d. 911 (Fla. 3 rd DCA 2003)...1,4,7,8 Thornton v. State, 963 So. 2d. 804 (Fla. 3 rd DCA 2007)..1,2,5,7,8 Valley v. State, 860 So. 2d. 464 (Fla. 4 th DCA 2003)...7,8 Valley v. State, 919 So. 2d. 697 (Fla. 4 th DCA 2006)...7,8 Williams v. State, 110 So. 2d. 654 (Fla. 1959)...1,4 CONSTITUTIONAL PROVISIONS PAGE(S) Fla. Const. Art. V, (3)(b)(3)...5 ii

4 OTHER AUTHORITIES PAGE(S) Fla. R. App. P (a)(2)(A)(iv)...5 Fla. R. App. P (a)(2)...10 iii

5 STATEMENT OF THE CASE AND FACTS In 1998, defendant was charged with first degree murder and armed robbery of Garyn Perriman. The murder took place at 62 nd and 2 nd (in Miami). (A.5) During defendant s first trial (Thornton I), in the state s case in chief, the state called Luis Varnardo. (A.2) Varnardo testified in front of the jury about a prior incident at the VIP Club that defendant allegedly told Varnardo about (A.2) The V.I.P. was located at 79 th Street and 7 th Avenue. (A.3) Varnardo s testimony, transpired in part, as follows: Q. Did Defendant Thornton talk to you about an incident where something he did by club V.I.P. or near club V.I.P.? A. No. Q. Did Mr. Thornton tell you that he had to quote unquote Burn a n----- near the V.I.P.? (A.2) The Third District Court of Appeal reversed in Thornton v. State, 852 So. 2d. 911 (Fla. 3 rd DCA 2003) ( Thornton I )(A.2) The court held that the above statement violated the rule of Williams v. State, 110 So. 2d. 654 (Fla. 1959) The court concluded: [Because] is was not shown to be related to the crime with which Thornton was charge[d] (A.3) The court found that the testimony was connected to an alleged prior unrelated offense. (A.3) -1-

6 In Thornton v. State, 963 So. 2d 804 (Fla. 3 rd DCA 2007) ( Thornton II ), the state again tried defendant for the charges of armed robbery and first degree murder. (A.3) The state referred to the V.I.P. incident in its opening statement. That went as follows: Prosecutor: Mr. Varnardo asked Thornton, if he wanted to go over to the VIP club, which is a strip joint up on 79 th Street and 7 th Avenue and Thornton said, no I can t go I can t go over there. I can t go over. Why? What did you do? Defense counsel: Objection (A.3) The state maintained that the VIP incident (although separated by 17 blocks from the crime scene), was the Perriman murder (A.3-5) The state argued that the statement regarding the VIP, to Varnardo was an admission to the Perriman murder (A.6-7) The trial court ruled: The Court: Okay. All Right. The Court finds that it isn t evidence [of] other uncharged crimes or other like crimes like William s Rule evidence. That it is related to this incident. The state will be able to get into that. (A.7) Varnardo testified before the jury that defendant had said that he had gotten into something with somebody and that he had shot somebody or something. Varnardo testified that defendant had a tag that wasn t any good. (A.8) Defendant was not going to stop if police tried to stop him. (A.8) -2-

7 Detective Ford testified to what Varnardo told him regarding the VIP incident. Varnardo had told Detective Ford that defendant said he had to shoot someone over by the VIP. (A.8) There were three eye witnesses to the Perriman murder, Chavarri, Davis, and Pinder. (A.13) Detective Ford testified that two of the three eyewitnesses, had described a man who defendant had independently identified as the actual perpetrator of the crime. (A.13) After rebuttal, defense counsel attempted to introduce a photo of the man who two of the three eyewitnesses and defendant had described as the actual perpetrator (through Ford). The state objected based on relevance. The trial court sustained the state s objection based on self-serving hearsay (from defendant). (A.13) Much of the testimony regarding the alleged actual perpetrator in the photo was presented through Detective Ford. (A.14) In the state s closing argument it argued that, defendant had confessed to a friend that he shot someone.(a.8) During rebuttal, the prosecutor argued to the jury: Finally, the VIP is this case. It is not there is [sic] no other shooting that happened at the VIP. There s no other shooting that I have charged or the State Attorney s Office has charged. -3- (A.9)

8 Defendant, was convicted of armed robbery and first degree murder. (A.1-2) The Third District Court of Appeal reversed. (A.1) The court held that admission of evidence of the V.I.P. incident violated its holding in Thornton v. State, 852 So. 2d. 911 (Fla. 3 rd DCA 2003) ( Thornton I ).(A.12) The law of the case precluded admission of evidence of the V.I.P. Club incident. (A.12) The court further held that exclusion of the photo of a man who was the alleged actual perpetrator of the offense was error. (A.14) Much of the testimony concerning the man in the photo was presented by the state, through Detective Ford. (A.14) The state did not make a valid evidentiary objection to preclude admission of the photo. The photo was relevant to the defense. (A.14) SUMMARY OF THE ARGUMENT In Thornton v. State, 852 So. 2d. 911 (Fla. 3 rd DCA 2003) ( Thornton I ), the court reversed and remanded for new trial. The court held that testimony regarding a prior unrelated offense purportedly committed by the defendant, at the V.I.P. Club, was error in violation of the rule of William v. State, 110 So. 2d. 543 (Fla. 1959). In sum, this error standing alone required reversal for a new trial. -4-

9 In Thornton v. State, 963 So. 2d. 804 (Fla. 3 rd DCA 2007)( Thornton II ), the state again admitted testimony regarding the same alleged unrelated offense proscribed by Thornton I. The location of the VIP Club, where the purported collateral offense occurred, was 17 blocks from the scene of the murder that defendant was on trial for. The witness who testified regarding this collateral offense, stated that the VIP incident was not the same as the offense defendant was on trial for. The Third District found that the law of the case from Thornton I remained, because there was no change in the facts. Insufficient facts were presented to avoid Thornton I. The District Court correctly found that the trial court improperly sustained the state s objection to admission of a photo of a man who had matched the description of the perpetrator (given by two of three eyewitnesses). The state s objection was based on relevance. ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISION OF THIS COURT, OR DECISION OF THE DISTRICT COURT OF APPEAL, THEREFORE, REVIEW MUST BE DENIED This Court has held that in order to have jurisdiction, under Fla. Const. Art. V,(3)(b)(3), and Fla. R. App. P (a)(2)(A)(iv), there must be an express and direct conflict -5-

10 with a decision of this Court, or another District Court of Appeal. A direct and express conflict can be predicated on irreconcilable facts on the same point of law. Crossley v. State, 596 So. 2d. 447,449 (Fla. 1992) Alternatively, express and direct conflict jurisdiction can be based on misapplication of a decision of this Court, or another District Court of Appeal. Aguilera v. Inservices, Inc., 905 So. 2d. 84 (Fla. 2005) Petitioner has not demonstrated that either¹ of the foregoing tests for conflict jurisdiction have been met. In Ramirez v. State, 542 So. 2d. 352 (Fla. 1989) ( Ramirez I ) this Court reversed for a new trial when the state admitted evidence of knife marks that linked the murder weapon to the defendant. The knife mark evidence, admitted through the state s expert, lacked evidence of the method use to establish reliability of the testing used by the expert, to link the knife to defendant. Therefore, the reliability of the testing that was the basis for the expert s conclusions lacked scientific reliability. 1. As a preliminary issue, petitioner states that the decision below expressly and directly conflicts with decision from this Court and the First and Second District Courts of Appeal. Petitioner s Brief at 4. However, petitioner cites to no decision from the First or Second District Courts of Appeal. -6-

11 In Ramirez v. State, 651 So. 2d (Fla. 1995)( Ramirez II ) the state endeavored to comply with this Court s instructions from Ramirez I. There, the state attempted to establish scientific reliability of their expert s testing procedures for knife mark identification. However, the state objected to, and the trial court sustained the objection to, the defense presenting evidence contradicting the state s expert. This Court again, reversed for a new trial. In Ramirez v. State, 810 So. 2d. 836 (Fla. 2001)( Ramirez III ), this Court found that evidence of knife mark identification did not meet the threshold for scientific reliability. The case was again reversed for a new trial. In Valley v. State, 860 So. 2d. 464 (Fla. 4 th DCA 2003)( Valley I ) the court reversed for a new trial where the trial court erred in admitted evidence of collateral crimes. After remand, Valley v. State, 919 So. 2d. 697 (Fla. 4 th DCA 2006)( Valley II ), the trial court admitted the same collateral crimes evidence that was the basis for reversal in Valley I. The District Court again reversed based on the holding of Valley I. In the instant case, the state was precluded from using evidence of collateral crimes by Thornton v. State, 852 So. 2d. 911 (Fla. 3 rd DCA 2003)( Thornton I ). In Thornton v. State, 963 So. 2d 804 (Fla. 3 rd DCA 2007)( Thornton II ), on remand for a -7-

12 new trial, the state made the same arguments, and the trial court admitted the same evidence that was basis for reversal in Thornton I. The Third District held that the state first raised the issue of exception to the law of the case at oral argument. Assuming, arguendo that the issue was preserved (and it was not), there were insufficient facts to avoid the ruling in Thornton I. Where, as here, the issue was not preserved², and decisions of this Court and another District Court, (do not conflict when the state does not follow direction from an appellate court), this Court must deny review. See Ramirez v. State, 542 So. 2d. 352 (Fla. 1989)( Ramirez I ); Ramirez v. State, 651 So. 2d (Fla. 1995)( Ramirez II ); Ramirez v. State, 810 So. 2d. 836 (Fla. 2001)( Ramirez III ); Valley v. State, 860 So. 2d. 464 (Fla. 4 th Valley v. State, 919 So. 2d. 697 (Fla. 4 th DCA 2003)( Valley I ); DCA 2006)( Valley II ) Cases relied on the petitioner, to argue that this Court should accept jurisdiction, are not in conflict with Thornton v. State, 963 So. 2d. 804 (Fla. 3 rd DCA 2007). Dade County School 2. Indeed, the state cited no appellate decision in their brief, where this Court has exercised conflict jurisdiction based on an issue that was unpreserved for review. Dorminey v. State, 314 So. 2rd. 134 (Fla. 1975)( Having failed to preserve this point for appeal [in the trial court] appellant may not now raise it for the first time ); Occhicone v. State, 571 So. 2d. 902, 906 (Fla. 1990)(holding that specific legal argument or ground that it is based must be presented in the trial court) -8-

13 Board v. W.Q.B.A., 731 So. 2d. 638 (Fla. 1999) was limited to the issue of application of the doctrine of equitable subrogation. In Robertson v. State, 829 So. 2d. 901 (Fla. 2002) this Court resolved misapplication of the tipsy coachman doctrine. Finally, Steinhorst v. State, 412 So. 2d. 332 (Fla. 1982) does not conflict with Thornton II. In Steinhorst, the defense attempted to raise an issue on appeal, not preserved in the trial court. There, admission of defensive evidence would have exceeded the scope of the direct examination. Here, the state had re-called Detective Ford on rebuttal. Evidence concerned the man who had been alleged to be the actual perpetrator of the Perriman murder was introduced through Detective Ford. The defendant would have been precluded from using the photo had they not attempted to introduce it on crossexamination after Detective Ford testified on rebuttal. Geralds v. State, 674 So. 2d. 96 (Fla. 1996)( cross examination extends to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief ); Riviera v. State, 561 So. 2d. 536, 539 (Fla. 1990)([ W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant s guilt, it is error to deny its admission ; Absent a -9-

14 valid evidentiary objection, the photo should have been admitted. Occhicone v. State, 570 So. 2d. 902, 906 (Fla. 1990) Thus, the Third District s holding is correct. CONCLUSION Based on the foregoing, this Court should deny review. CERTIFICATE OF SERVICE AND COMPLIANCE I HEREBY CERTIFY that the font in the forgoing document was generated pursuant to Fla. App. P (a)(2), in courier new 12 point font, and a true and correct copy of the foregoing document has been furnished via U.S. Mail the 12th, day of November, 2007, to: Office Of The Attorney General, 444 Brickell Avenue, Miami, Florida S/David S. Molansky BY: DAVID S. MOLANSKY, ESQ. Attorney for Respondent David S. Molansky Attorney at Law Biscayne Blvd., Suite 405 Miami, Florida Tel: (305) Fax: (305) Fla. Bar. No.: