IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CLARENCE LEERDAM, Petitioner, v. Case No. SC STATE OF FLORIDA, Respondent. ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No KATHERINE COOMBS CLINE Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 ISSUE I: WHETHER THE DECISION BELOW EXPRESSLY CONSTRUES PROVISIONS OF THE FEDERAL AND STATE CONSTITUTION. 5 ISSUE II: WHETHER THE DECISION BELOW EXPRESSLY CONFLICTS WITH THE DECISIONS OF THIS COURT IN AMOS V. STATE, 618 So.2d 157 (Fla. 1993) AND THOMPSON V. STATE, 507 So.2d 1074 (Fla. 1987) CONCLUSION...10 CERTIFICATE OF SERVICE...10 CERTIFICATE OF FONT COMPLIANCE...10 i

3 TABLE OF CITATIONS CASES Amos v. State, 618 So. 2d 157 (Fla. 1993)... 1,5,8,9 Bova v. State, 410 So. 2d at Cabreriza v. State, 517 So. 2d 51 (Fla. 3d DCA 1987)... 9 Leerdam v. State, 29 Fla. L. Weekly D2101 (Fla. 2d DCA Sept. 17, 2004). 4,6,9 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 7 State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)... 1 Thompson v. State, 507 So. 2d 1074 (Fla. 1987)... 1,2,5,8,9 MISCELLANEOUS P. Padovano, Florida Appellate Practice, 3.8 (2004 Edition)... 6 Art. V, 3(b)(3) Fla. Const.... 4,5,6,7 Fla. Std. Jury Instr. (Crim.) Fla. R. App. P (a)(2)(a) (ii)... 4,5,7 ii

4 STATEMENT OF THE CASE AND FACTS The Petitioner appealed his convictions of two counts of attempted first-degree murder, one count of armed burglary, and one count of violating a final injunction for protection. Petitioner contended that he was deprived of his right to counsel during a ten minute trial recess held at the conclusion of defense counsel s direct examination of the defendant. Jury instructions were discussed during the recess. The Second District determined that under Amos v. State, 618 So.2d 157 (Fla. 1993) and Thompson v. State, 507 So.2d 1074 (Fla. 1987), that the trial court committed error when it denied Petitioner access to his counsel during the ten minute recess. However, the court found that the error was harmless. The Second District s harmless error analysis is as follows: In harmless error analysis under Florida law, the burden is on the State to prove beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). In any direct appeal in which the defendant is able to prove from the record on its face that the denial of effective assistance of counsel undermined confidence in the outcome of the trial, the State cannot possibly prove beyond a reasonable doubt that the error did not contribute to the verdict. In this case, Leerdam fails to prove from the face of the record that he was denied effective assistance of counsel for two reasons. First, the recess in this case was of a different character than the overnight recess in Geders, in which it was appropriate to presume that the defendant and his 1

5 counsel would discuss a variety of trial-related matters. The character of the far shorter recess in this case does not compel the conclusion that Leerdam was denied effective assistance of counsel without further examination of the record. Second, further examination of the record does not demonstrate that Leerdam was denied effective assistance of counsel. From the record, it is appropriate to presume that one trial-related matter-jury instructions-could have been the subject of the consultation. However, the record indicates that Leerdam's trial counsel competently advocated for Leerdam during the recess. On appeal, no error with regard to jury instructions has been asserted or shown. If Leerdam had demonstrated error with regard to jury instructions, then it would be difficult for the State to prove that the error was harmless, given the related error of denial of access to counsel. Similarly, if it were appropriate to presume that the subject of the consultation could have been plea negotiations, then it would be difficult for the State to prove that the error did not affect the very jury verdict that such consultation could have precluded. Under the facts of this case, however, the State is not prevented from proving harmless error by a denial of effective assistance of counsel. The error of denying access to counsel during a recess called immediately prior to cross-examination of the defendant has been found not to be harmless when the defendant's performance on cross-examination could have affected the verdict. Thompson, 507 So. 2d at In Thompson, the State called a recess for the sole purpose of aiding its effort to impeach the defendant, whose credibility, or lack thereof, was crucial to the issue of guilt. At that critical juncture, it was appropriate to presume that "defense counsel could have advised, calmed, and reassured [the defendant] without vio- 2

6 lating the ethical rule against coaching witnesses." Id. In this case, Leerdam's performance on cross-examination could not have affected the verdict because the outcome did not hinge upon his credibility. While admitting other elements of attempted murder, Leerdam attempted to negate pre meditation by testifying that he went to his former girlfriend's home with the intention of committing suicide in her presence because he, as a seventy-year-old man who had been depressed, was despondent over the breakup of his romantic relationship with her. However, this theory, even if believed, was not inconsistent with conclusive evidence of premeditation. The victims, Delguidice and Bililis, gave consistent descriptions of events. Several seconds of shouting transpired in the darkened bedroom before Leerdam opened fire. The first bullet hit Bililis as he attempted to obstruct the intruder. Leerdam then fired twice, holding the gun level and aiming at the victims as they ran for the bathroom. Leerdam shouted, "Doreen, you are a whore." After the victims reached the bathroom, Leerdam continued to fire through the bathroom door as Bililis locked it. Leerdam fired three shots through the bathroom door, one of which struck near the sound of Delguidice's voice after she moved her position from where Leerdam had last seen her. Crime scene photographs and other forensic evidence supported the victims' descriptions of events. Hours before the shooting, Leerdam told a taxicab driver that he was angry at his girlfriend and wanted to use a gun to kill her. Hours after the shooting, while in police custody, he voluntarily told an officer, "Six shots and I missed her. I can't believe I didn't kill her," among other inculpatory statements while in custody. 3

7 Testifying on his own behalf on direct examination, Leerdam said that he let himself into the house with a key with the intention of climbing into Delguidice's bed and shooting himself next to her. However, he did not remember many of the events described by the victims after he entered the bedroom, although he denied aiming the gun as it "went off." On cross-examination, he maintained that the first shot was fired in self-defense, but he reasserted his lack of memory as to other events. He said that he did not remember making inculpatory statements before, during, or after the shooting. Thus Leerdam's testimony, even if believed, did not dispute key evidence of a premeditated design to kill. As the trial judge instructed: A premeditated design[] to kill means that there was a conscious decision to kill. The decision must be present in the mind of the Defendant at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act itself. The period of time must be long enough to allow reflection by the Defendant. The premeditated intent to kill must be formed before the act was committed. See also Fla. Std. Jury Instr. (Crim.) 6.2. Having carefully reviewed the entire record, we conclude that the error was harmless beyond a reasonable doubt. Leerdam v. State, 29 Fla. L. Weekly D2101 (Fla. 2d DCA Sept. 17, 2004)(footnote ommitted). SUMMARY OF THE ARGUMENT The Second District s mere application of constitutional principles and federal and state precedent to the facts of the instant case does not amount to express construction of a con- 4

8 stitutional provision. Accordingly, Petitioner has not demonstrated any basis under Article V, 3(b)(3) of the Florida Constitution or Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate Procedure, for this Court to review the decision of the Second District. There is no conflict between the instant case and that of Amos v. State, 618 So.2d 157 (Fla. 1993) and/or Thompson v. State, 507 So.2d 1074 (Fla. 1987). Not only does the opinion in the instant case fail to expressly conflict with Amos v. State, 618 So.2d 157 (Fla. 1993) and Thompson v. State, 507 So.2d 1074 (Fla. 1987), it comports with and expressly relies on this Court s decisions in those cases. Petitioner has not demonstrated any basis under the Florida Constitution or the Florida Rules of Appellate Procedure for this Court to review the decision of the Second District. Therefore, this Court should decline to exercise jurisdiction over this case. ARGUMENT ISSUE I: WHETHER THE DECISION BELOW EXPRESSLY CONSTRUES PROVISIONS OF THE FED- ERAL AND STATE CONSTITUTION. Petitioner seeks to invoke the discretionary jurisdiction of this Court pursuant to Article 5, 3, of the Florida Constitution and Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate 5

9 Procedure. Article 5, 3 of the Florida Constitution provides, in pertinent part, that this Court may review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution,... (e.s.) Likewise, Rule (a)(2)(a)(ii), Florida Rules of Appellate Procedure, provides that this Court s discretionary jurisdiction is limited to review those decisions of district courts of appeal that expressly construe a provision of the state or federal constitution. Petitioner claims that the de Second District s decision in Leerdam v. State, 29 Fla. L. Weekly D2101 (Fla. 2d DCA Sept. 17, 2004) expressly construes a provision of the state or federal constitution. A decision of a District Court is not reviewable under Article V, 3(b)(3) merely because the district court applied constitutional principals to the facts of the case or merely because it has the effect of construing a provision of a provision of the state or federal constitution. See, e.g., Philip J. Padovano, Florida Appellate Practice, 3.8, at (2004 ed.). section 3(b)(3) plainly requires a written statement explaining or defining the disputed constitutional language. Id. at 50. In this case, the Second District considered federal and Florida precedent regarding the defendant s right to consult with counsel during a recess that is called while the defendant is on the 6

10 witness stand. Relying on state and federal precedent, the Second District concluded that the trial court erred in denying the defendant access to counsel during a brief recess during the defendant s testimony, but found that the error was harmless. Leerdam v. State, 29 Fla. L. Weekly D2101 (Fla. 2d DCA Sept. 17, 2004). The Second District s mere application of constitutional principles and federal and state precedent to the facts of the instant case does not amount to express construction of a constitutional provision. Accordingly, Petitioner has not demonstrated any basis under Article V, 3(b)(3) of the Florida Constitution or Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate Procedure, for this Court to review the decision of the Second District. ISSUE II: WHETHER THE DECISION BELOW EXPRESSLY CONFLICTS WITH THE DECISIONS OF THIS COURT IN AMOS V. STATE, 618 So.2d 157 (Fla. 1993) AND THOMPSON V. STATE, 507 So.2d 1074 (Fla. 1987). This Court has authority as the highest court of the state to resolve legal conflicts created by the district courts of appeal. The Florida Constitution, article V, section 3(b)(3), authorizes this Court to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or with a decision of the 7

11 Florida Supreme Court. This Court has identified two basic forms of decisional conflict which properly justify the exercise of jurisdiction under section 3(b)(3) of the Florida Constitution. Either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves "substantially the same controlling facts as a prior case...." Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). Petitioner claims the Second District Court of Appeal s decision in the instant case is in direct and express conflict with the decisions of this Court s decisions in Amos v. State, 618 So.2d 157 (Fla. 1993) and Thompson v. State, 507 So.2d 1074 (Fla. 1987). Not only does the opinion in the instant case fail to expressly conflict with Amos v. State, 618 So.2d 157 (Fla. 1993) and Thompson v. State, 507 So.2d 1074 (Fla. 1987), it comports with and expressly relies on this Court s decisions in those cases. The Second District applied this Court s precedent in Amos and Thompson stating that: the Florida Supreme Court has adhered to its own formulation of the defendant's right to consult with counsel during a recess that is called during the defendant's testimony: "No matter how brief the recess, a defendant in a criminal process must have access to his 8

12 attorney." Amos v. State, 618 So. 2d 157, 161 (Fla. 1993) (quoting Bova v. State, 410 So. 2d 1343, (Fla. 1982), which referred to the defendant's right to counsel as provided by article I, section 16, of the Florida Constitution). Such access allows defense counsel to advise, calm, and reassure the defendant without violating the rule against coaching witnesses. Id. (citing Thompson v. State, 507 So. 2d 1074, 1075 (Fla. 1987)). Thus in Florida, regardless of whether the recess is one hour, thirty minutes, or ten minutes, "to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel." Id. at 161 (quoting Bova, 410 So. 2d at 1345). However, all such violations are subject to harmless error analysis, wherein the State is afforded the opportunity to prove that the constitutional deprivation did not contribute to the verdict. See id.; Thompson, 507 So. 2d at 1075; Bova, 410 So. 2d at 1345; Cabreriza v. State, 517 So. 2d 51, 52 (Fla. 3d DCA 1987). Leerdam v. State, 29 Fla. L. Weekly D2101 (Fla. 2d DCA Sept. 17, 2004)(Footnotes ommitted). Petitioner, argues that under Amos, harmless error analysis does not apply in this situation because the error was a structural or clear error. However, this Court s opinion in Amos reveals that this Court applied harmless error analysis to the errors in Amos and determined that under the facts of the case, the cumulative error was not harmless. Specifically, this Court found that: Amos raises ten points on appeal. We find that three have merit and require discussion. While each of these points individually might be found harmless under the harm- 9

13 less error rule, we are unable to hold that they constitute harmless error when taken collectively. Amos, 618 So. at 161 (emphasis added). This Court also clearly applied a harmless error analysis in Thompson and came to the conclusion that the error was not harmless under the facts of that case. Thompson, 507 So.2d at Accordingly, the instant case does not expressly conflict with Amos or Thompson. Therefore, this Court does not have jurisdiction to hear this matter. 10

14 CONCLUSION Respondent respectfully requests that this Honorable Court decline to accept jurisdiction to review this case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to James T. Miller, Esq., 233 E. Bay Street, Suite 920, Jacksonville, Florida 32202, this day of December, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No KATHERINE COOMBS CLINE Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813)

15 COUNSEL FOR RESPONDENT 12