IN THE SUPREME COURT OF THE STATE OF FLORIDA SC CASE NO. SC DCA CASE NO.4D LT. NO CFA02 SHARA N. COOPER, Petitioner, vs.

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA SC CASE NO. SC DCA CASE NO.4D LT. NO CFA02 SHARA N. COOPER, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No MYRA J. FRIED Assistant Attorney General Florida Bar No N. Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Fax: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT...3 ARGUMENT THE ORDER OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF LAW. (RESTATED) CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE SIZE AND STYLE...10 i

3 TABLE OF AUTHORITIES STATE CASES Arnett v. State, 843 So. 2d 340 (Fla. 1 st DCA 2003).... 4,6,8 Cofield v. State, 474 So. 2d 849 (Fla. 1 st DCA 1985)... 4,6,8 Cooper v. State, 45 So.3d 490 (Fla. 4 th DCA 2010).....2,3,4,5 Dept. of Health and Rehabilitative Services v. National Adoption Counseling Services, Inc., 498 So. 2d 888 (Fla. 1986)....7,9 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) ,7 Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962) Mancini v. State, 312 So. 2d 732 (Fla. 1975) Melendez-Diaz v. Massachusetts, 129 S.Ct (2009)... 4,6,7 Morningstar v. State, 405 So. 2d 778, 783 (Fla. 4th DCA 1981), affirmed, 428 So. 2d 220 (Fla. 1982) Nielson v. City of Sarasota, 117 So.2d 731, 734 (Fla. 1960)..9 Speciality Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. 2d DCA 1988) ,4,5,6,8 State v. Johnson, 982 So. 2d 672 (Fla. 2008) ,6,8 Vanzant v. State, 372 So. 2d 562 (Fla. 1 st DCA 1979) ,6 Yisrael v. State, 993 So. 2d 952 (Fla. 2008) ,5 RULES Rule 9.030(a)(2)(iv), Fla. R. App. P ,6 MISCELLANEOUS Art. 5, Sec. 3(b)(3) Fla. Const ii

4 PRELIMINARY STATEMENT Petitioner was the defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal. STATEMENT OF THE CASE AND FACTS Shara Cooper, Petitioner, was charged with committing first-degree murder of Samuel Norris while using a firearm; first degree arson of a dwelling; grand theft of a motor vehicle; and grand theft of a firearm. (R. 1-2). On count one, appellant was found guilty of the lesser-included offense of second-degree murder with a firearm, but without using a firearm. On the other counts she was found guilty as charged of first-degree arson; grand theft of a motor vehicle; and grand theft of a firearm. (R ). She was sentenced to life for the murder count, and 30 years concurrent for the arson. (R ; T. 2346). At trial, the State sought to introduce defendant s wireless telephone records through the expert testimony of a store manager with Verizon Wireless. The purpose behind introducing the wireless phone records was to establish Petitioner s location on the date and time the crimes were committed. The State s expert testified that he was: (a) responsible for monitoring and managing different Verizon retail stores; (b) trained and experienced in the operation of a cell phone, data servicing, records processing, 1

5 and customer, billing, and technical support; and (c) knowledgeable in matters relating to call records and the transmission of customer calls through Verizon s network. He also testified that Verizon maintained call records in the normal course of business and described how customer calls traveled through its system. With this information, the expert explained that, when a customer places a phone call, the call connects to a nearby tower location and then transmits to a switching station where a call record is stored at the time the call is made. Cooper v. State, 45 So. 3d 490, 492 (Fla. 4 th DCA 2010). At trial, the defense argued that the expert was not qualified to testify as to how Verizon maintained its records. The State argued that the expert testified that the call records were maintained when phone calls were made and that, although he did not understand the electronic process involved in maintaining call records, an information technologist is not necessary to introduce the records into evidence. The trial court agreed with the State, finding that the witness was able to testify as to Verizon s maintenance and preparation of its call records. The trial court found that there was a sufficient predicate to allow the introduction of the records into evidence. Id. at 492. The Fourth DCA held: In the instant case, the State s expert was a qualified witness given his position as a store manager and training and experience in (a) phone servicing; (b) the transmission process of phone calls through Verizon s network; (c) records maintenance; (d) data servicing; and (e) customer, billing, and technical support. Even though the expert was not 2

6 individually responsible for maintaining Verizon s records, he was trained in the procedures for maintaining business and billing records and testified that Verizon maintained its records on a regular basis, in the ordinary course of business, and as phone calls traveled throughout its network. The expert also explained the process of how phone calls connect to network towers and switching stations, which is where call records are electronically maintained at the time in which calls are made. In other words, he described the interplay of Verizon s towers and switching stations when phone calls are made and transmitted through Verizon s network. The expert s knowledge of and familiarity with Verizon s business practices met the four-part test enunciated in Yisrael. See Yisrael [v. State], 993 So. 2d [952] at 956 [(Fla. 2008)]; Speciality Linings, Inc. [v. B.F. Goodrich Co.], 532 So. 2d [1121] at 1121 [(Fla. 2d DCA 1988)]. Accordingly, the trial court did not abuse its discretion in permitting the State s expert to testify as to how Verizon maintains and prepares its records and in admitting defendant s wireless phone records into evidence. Cooper v. State, 45 So.3d 490, 493 (Fla. 4 th DCA 2010). The Fourth DCA affirmed the conviction and sentence, finding that the store manager for Verizon phone company was qualified to lay the foundation for admission of Petitioner s wireless telephone records into evidence. Id. Petitioner then sought discretionary jurisdiction from this Honorable Court. SUMMARY OF THE ARGUMENT The Fourth DCA s decision in the case sub judice did not expressly and directly conflict with a decision of another district court of appeal or of this Court on the same question of law. Thus, this Court should decline to exercise its 3

7 jurisdiction in this matter. ARGUMENT THE ORDER OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF LAW. (RESTATED) Petitioner contends that the order of the Fourth District Court of Appeal in this case, (a copy of the Fourth District s opinion, Cooper v. State, 45 So.3d 490 (Fla. 4 th DCA 2010), is attached hereto as Appendix A ), expressly and directly conflicts with Arnett v. State, 843 So. 2d 340 (Fla. 1 st DCA 2003); Cofield v. State, 474 So. 2d 849 (Fla. 1 st DCA 1985); Specialty Linings v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. 2d DCA 1988); State v. Johnson, 982 So. 2d 672 (Fla. 2008); Melendez-Diaz v. Massachusetts, 129 S.Ct (2009); and Vanzant v. State, 372 So. 2d 562 (Fla. 1 st DCA 1979) on the same question of law (pursuant to Rule 9.030(a)(2)(iv), Fla. R. App. P.). Respondent disagrees. First, Melendez-Diaz v. Massachusetts, 129 S.Ct (2009), is not a Florida Supreme Court or Florida District Court of Appeal case; it is a United States Supreme Court case. Therefore, Petitioner cannot use this case to invoke discretionary jurisdiction in the State of Florida pursuant to Rule 9.030(a)(2)(iv), Fla. R. App. P. 4

8 Next, the Fourth DCA held: In the instant case, the State s expert was a qualified witness given his position as a store manager and training and experience in (a) phone servicing; (b) the transmission process of phone calls through Verizon s network; (c) records maintenance; (d) data servicing; and (e) customer, billing, and technical support. Even though the expert was not individually responsible for maintaining Verizon s records, he was trained in the procedures for maintaining business and billing records and testified that Verizon maintained its records on a regular basis, in the ordinary course of business, and as phone calls traveled throughout its network. The expert also explained the process of how phone calls connect to network towers and switching stations, which is where call records are electronically maintained at the time in which calls are made. In other words, he described the interplay of Verizon s towers and switching stations when phone calls are made and transmitted through Verizon s network. The expert s knowledge of and familiarity with Verizon s business practices met the four-part test enunciated in Yisrael. See Yisrael [v. State], 993 So. 2d [952] at 956 [(Fla. 2008)]; Speciality Linings, Inc. [v. B.F. Goodrich Co.], 532 So. 2d [1121] at 1121 [(Fla. 2d DCA 1988)]. Accordingly, the trial court did not abuse its discretion in permitting the State s expert to testify as to how Verizon maintains and prepares its records and in admitting defendant s wireless phone records into evidence. Cooper v. State, 45 So.3d 490, 493 (Fla. 4 th DCA 2010). The Fourth DCA affirmed the conviction and sentence, finding that the store manager for Verizon phone company was qualified to lay the foundation for admission of Petitioner s wireless telephone records into evidence. Id. Respondent maintains that the Fourth DCA did not explicitly rely on all of the cases cited by Petitioner. Only one of the 5

9 cases cited by Petitioner was also referred to by the Fourth DCA: Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. 2d DCA 1988). Therefore, Arnett v. State, 843 So. 2d 340 (Fla. 1 st DCA 2003); Cofield v. State, 474 So. 2d 849 (Fla. 1 st DCA 1985); State v. Johnson, 982 So. 2d 672 (Fla. 2008); Vanzant v. State, 372 So. 2d 562 (Fla. 1 st DCA 1979); and Melendez-Diaz v. Massachusetts, 129 S.Ct (2009) were not mentioned anywhere in the four corners of the opinion. It is well settled that in order to establish conflict jurisdiction, the decision sought to be reviewed must expressly and directly create a conflict with a decision of another District Court of Appeal or of the Supreme Court on the same question of law. Article 5, Section 3(b)(3) Fla. Const.; Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Contrary to Petitioner s assertion, this Court does not have discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), to review the instant case. In order for two decisions to be in express and direct conflict for the purpose of invoking this Court's discretionary jurisdiction, the decisions should speak to the same point of law, in factual contexts of sufficient similarity to permit the inference that the result in each case would have been different had the deciding court employed the reasoning of the other court 6

10 as mandatory authority. See generally Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980); Mancini v. State, 312 So. 2d 732 (Fla. 1975). The conflict must be of such magnitude that if both decisions were rendered by the same court, the later decision would have the effect of overruling the earlier decision. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). However, [if] the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then conflict cannot arise. Id. at 887. "Obviously two cases can not be in conflict if they can be validly distinguished." Morningstar v. State, 405 So. 2d 778, 783 (Fla. 4th DCA 1981), Anstead J. concurring, affirmed, 428 So. 2d 220 (Fla. 1982). See also, Dept. of Health and Rehabilitative Services v. National Adoption Counseling Services, Inc., 498 So. 2d 888 (Fla. 1986)("inherent or so called 'implied' conflict may no longer serve as a basis for this Court's jurisdiction.") Respondent submits that the opinion in the case at bar does not directly and expressly conflict with the cases cited by Petitioner. Those cases are factually distinguishable from the case at bar. In Melendez-Diaz, the evidence targeted were certificates of analysis sworn by analysts at a state laboratory. Those certificates were calculated for use in court, and not in business, and thus did not qualify as business or 7

11 public records. In State v. Johnson, the evidence in question was a report from the police crime laboratory. The report was generated in order to help convict the defendant, not for any other purpose. In Arnett, the testimony of the records custodian was skeletal and scant. That witness said that she had been employed by the Department of Motor Vehicles (DMV) for 31 years, that she was familiar with the DMV s recording system, and that the order in question was sent to the defendant as required by statute. In Cofield, the witness in that case did not have personal knowledge of the computer printouts. In Specialty Linings, Inc., the witness, a general manager, was not familiar with any transactions on an invoice. In the instant case, the wireless telephone records were specifically created for the purpose of billing customers. As such, the records in this case were specifically made for business purposes, and not for purposes of being used in court. Further, although the state witness did not actually prepare the wireless telephone records, the witness was able to thoroughly explain those records. Also, the evidence from the expert witness was anything but skeletal. The witness went into great detail as to how the cell phone system was used and how the records were generated. This witness went into much more detail as to the intricacies of how the system worked than the 8

12 witnesses in the cases cited by Petitioner. Further, the State s expert witness in this case had personal knowledge of the telephone records. The witness in this case, a floating store manager, was well aware of the transactions (the calls) that occurred, and how they were created. As previously cited, implied conflict may no longer serve as a basis for this Court's jurisdiction. Dept. of Health and Rehabilitative Services v. National Adoption Counseling Services, Inc., 498 So. 2d 888 (Fla. 1986). Thus, the Fourth DCA s reasoning for affirming the conviction and sentence is not obvious at all. There is no indication in the opinion that it expressly and directly conflicts with any case law at all. The burden is on the Petitioner seeking discretionary review. Here, Petitioner has failed to show that the cases he has cited are not distinguishable from the case at bar. Because no real, live and vital conflict exists, jurisdiction of this Court should be denied. Nielson v. City of Sarasota, 117 So.2d 731, 734 (Fla. 1960). CONCLUSION Respondent respectfully requests this Court to DECLINE to accept jurisdiction to review the instant case. 9 Respectfully submitted, BILL McCOLLUM Attorney General

13 Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No MYRA J. FRIED Assistant Attorney General Florida Bar No N. Flagler Drive Suite 900 West Palm Beach, FL Telephone: (561) Counsel for Respondent Fax: (561) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent's Brief on Jurisdiction has been furnished by U.S. Mail to: Shara N. Cooper, Pro Se, #163560, Broward Correctional Institution, Sheridan Street, Fort Lauderdale, FL 33332, on December, Of Counsel CERTIFICATE OF TYPE SIZE AND STYLE The undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New type, a font that is not proportionately spaced, on December, MYRA J. FRIED 10

14 IN THE SUPREME COURT OF THE STATE OF FLORIDA SC CASE NO. SC DCA CASE NO.4D LT. NO CFA02 SHARA N. COOPER, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT S APPENDIX BILL McCOLLUM Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No MYRA J. FRIED Assistant Attorney General Florida Bar No N. Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Fax: (561) Myra.Fried@myfloridalegal.com Counsel for Respondent i

15 App. A...Cooper v. State, 45 So.3d 490 (Fla. 4 th DCA, Sept. 8, 2010). ii

16 APPENDIX A iii