IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

Transcription

1 IN THE SUPREME COURT OF FLORIDA BRENT HUCK, Petitioner, v. CASE NO. SC STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, Jr. ATTORNEY GENERAL KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR # Seabreeze Blvd. Fifth Floor Daytona Beach, FL (386) Fax (386) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS...ii STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT I. THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. 2 CONCLUSION... 3 CERTIFICATE OF SERVICE... 4 CERTIFICATE OF FONT COMPLIANCE... 4 i

3 TABLE OF CITATIONS CASES PAGE NO Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)... 4 Castor v. State, 365 So. 2d 701 (Fla. 1978)... 6 Huck v. State, 881 So. 2d 1137 (Fla. 5th DCA 2004)... 1,2,5 Jenkins v. State, 385 So.2d 1356, 1357 (Fla. 1980)... 4 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4 State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)... 2,5 OTHER AUTHORITIES: Article V, section (3)(b)(3), Fla. Const ii

4 STATEMENT OF FACTS Huck's first three claims involve the admission of a tape recording of a controlled call between Huck and his girlfriend. The following facts are set forth in the opinion below: Michelle Dwyer was Mr. Huck's fiancee. Although their relationship had ended at one point because Mr. Huck had apparently lied to her about an ex-girlfriend, they had reconciled in early June of The police contacted Ms. Dwyer on July 28, 2000, and asked her to call Mr. Huck on the telephone while the police taped the conversation. She agreed to do so. The conversation was not terribly informative. When Ms. Dwyer asked about the murder victim, Mr. Huck replied that he was "not talking on the f phone," and hung up. Several other attempts resulted in the same response. Audible on the tape is the police investigator's comment, I don't want you to push him too far. Okay? Because I don't trust him as far as I can throw him." The tape was offered into evidence over defense objections for relevancy. The defense objected, as well, after the officer's comment was played to the jury and moved for a mistrial. Curiously, although the defense was fully aware of the fact that the officer's comment was on the tape, it made no specific objection to the playing of that portion until after the comment was made known to the jury. The 1

5 trial judge denied the motion for mistrial, but gave a curative instruction. Huck v. State, 881 So. 2d 1137, 1150 (Fla. 5th DCA 2004). The district court found that the comment of the police officer was inadmissible, but that two matters "undercut" the prejudicial nature of the comment. The first was that the trial court gave a curative instruction, and the second was that defense counsel never raised a specific objection to that part of the tape even though it knew of the comment before the tape was played. The district court thought this "smacks of invited error", and if the defense did not feel compelled to raise the issue before the cat was out of the bag, it should be satisfied with a curative instruction. Id. at The district court also found that Huck's claim that the admission of the tape in evidence amounted to an improper comment on the exercise of his right to remain silent was not presented to the trial court. The district court then concluded that while the admission of the tape in evidence was error (probative value was outweighed by danger of unfair prejudice), any error was harmless. The court stated, "We conclude beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)...". Huck, 881 So. 2d at The district court 2

6 concluded its decision by stating, "Mr. Huck has raised numerous other points on appeal, including an attack on the consensual search and warrant search, none of which we deem to be meritorious." Id. 3

7 SUMMARY OF ARGUMENT This court does not have jurisdiction to review this case. The decision of the Fifth District Court of Appeal in this case does not expressly and directly conflict with a decision of this Court or any other court. 4

8 ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. This Court has jurisdiction under article V, section (3)(b)(3) of the Florida Constitution where a decision of a district court "expressly and directly conflicts" with a decision of this Court or another district court. This Court has repeatedly held that such conflict must be express and direct, that is, "it must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In Jenkins v. State, 385 So.2d 1356, 1357 (Fla. 1980) this Court quoted from its earlier decision in Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958): We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed...it was never intended that the district courts of appeal should be intermediate courts...to fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of 5

9 (emphasis supplied). justice than that which the system was designed to remedy. Huck first claims that the district court created express and direct conflict with prior rulings of this Court by misapplying its prior holdings on harmless error analysis. In concluding that the admission of the tape at issue into evidence was harmless, the district court specifically stated, "We conclude beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)...". Huck, 881 So. 2d at This is the undisputed and longstanding standard for examining harmless error in Florida, so no conflict exists. Huck next complains that the district court misapplied the invited error doctrine because he made objections to the tape via a motion in limine and a contemporaneous objection. However, while the district court recognized that a relevancy objection had been made, it specifically found that defense counsel never raised a specific objection to the officer's comment on the tape even though it knew of the comment before the tape was played. Again, no conflict exists. In a similar claim, Huck contends that the district court misapplied the waiver doctrine in determining that the defendant should have presented the admissibility of the defendant's 6

10 silence to the trial court prior to its admission. Contrary to Huck's assertion, the district court properly applied the contemporaneous objection rule. As this Court stated over 25 years ago: The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of the judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually. To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to review the issue for intelligent review on appeal. Castor v. State, 365 So. 2d 701 (Fla. 1978). The district court simply applied this longstanding principle, so no conflict exists. Huck's final claim is nothing more than an attack on the sufficiency of the evidence, and an attempt to seek further review of the district court's finding on that issue. This is not a basis for invoking this Court's jurisdiction. Given the fact that the Fifth District Court of Appeal is a court of final 7

11 appellate jurisdiction and given the very limited and restricted bases for this Court's exercise of its discretionary jurisdiction based upon conflict, it cannot be said that Huck has established any good cause for the exercise of that jurisdiction. There is no express or direct conflict, and in fact, the decision of the Fifth District in this case is consistent with the longstanding decisions of this Court. CONCLUSION Based on the arguments and authorities presented herein, the State asserts that this court does not have jurisdiction to review the decision in this case. Respectfully submitted, CHARLES J. CRIST, Jr. ATTORNEY GENERAL KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Fla. Bar # Seabreeze Boulevard Fifth Floor Daytona Beach, FL (386) CERTIFICATE OF SERVICE COUNSEL FOR RESPONDENT I HEREBY CERTIFY that a true and correct copy of the above Jurisdictional Brief has been furnished by U.S. Mail Robert R. 8

12 Berry, 5450 Village Drive, Viera, FL 32955, this day of December, CERTIFICATE OF FONT AND TYPE SIZE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced, in compliance with Fla. R. App. P (a)(2). Kellie A. Nielan ASSISTANT ATTORNEY GENERAL 9