FILED JOHN A. TOMASINO THE FLORIDA SUPREME COURT DEC 23 200 cuirk, SUPREME COURT BY CATHLYN PALMER, Petitioner, Vs.. Supreme Court Case No: SC(3-236t040 DCA Case No: 3D11-3331 L.T. Case No: 09-26658 THE STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF PETITIONER Cathlyn Palmer # M59030 Petitioner/pro se Calhoun Corr. Inst. 19562 S.E. Inst. Dr. Blountstown, FL 32424 2 O O
TABLE OF CONTENTS TABLE OF CONTENTS... II TABLE OF CITATIONS... III PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 1 SUMMARY ARGUMENT...2 GROUND ONE...3 THE DISTRICT COURT MISAPPLIED THE LAW WHERE THE TRIAL COURT ALLOWED THE PROSECUTOR TO DEMONSTRATE PETITIONER'S GAIT (I.E. WALK) TO THE JURY WAS COMMUNICATIVE IN NATURE, THAT VIOLATED HIS 5T" AMENDMENT RIGHTS TO THE U.S. CONSTITUTION THAT HAS BEEN EXPRESSLY CONSTRUED... 3 CONCLUSION...6 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF COMPLIANCE... 6 11
TABLE OF CITATIONS CASES Machin v. State, 213 So.2d 979 (Fla. 3'd DCA 1968)------------------------------4 Macias v. State, 515 So.2d 206, 209 (Fla. 1987) ------------------------------------4 Marshall v. Jerrico Inc., 446 U.S. 238, 100 S.Ct. 1610, 1613 64 L.Ed.2d 182 (1980). -----------------------------------------------------------------5 Murphy v. Waterfront Comm'n ofn.y. Habor, 378 U.S. 52, 55 (1964) ------------3 Serratore v. People, 178 Colo. 341, 497 P. 2d 1018 (1972)------------1, 4 FLORIDA RULES OF APPELLATE PROCEDURE 9.210(a)(2) -----------------------------------------------------------------------------7 FLORIDA CONSTITUTION Article I. Sec. 2 and 9 Fla. Constitution----,---------------------------------------------3 Article V. Sec. 3(b)(3)-----------------------------------------------------------------------3 U.S. CONSTITUTION AMENDMENT(S) 14* Amendment--------------------------------------------------3, 5 6th Amendment -------------------------------------------------5 5* Amendment----------------------------------passim OTHER PROVISION Title 28 U.S.C. 2254(h)----------------------------------------------------------6 111
PRELIMINARY STATEMENT Cathlyn Palmer was the Appellant in the Direct Appeal taken to the Third District Court of Appeal, and in this Jurisdiction Brief he will be referred to by his proper name or as the "Petitioner". The Petitioner will designated references to the Third DCA opinion issued November 6, 2013 as, See Appendix A infra (with the opinion attached to this Jurisdictional Brief). STATEMENT OF FACTS The Petitioner direct appealed the convictions for Armed Robbery, Burglary, and Possession ofa Firearm During the Commission ofa Felony. On Direct Appeal Assistant Public Defender Howard K. Blumgerg raised three claims, which Point III was rejected, which in the Initial Brief on this claim was captioned as following: III. THE TRIAL COURT ERRED IN GRANTING THE STATE'S REQUEST TO COMPEL THE DEFENDANT TO PARTICIPATE IN A DEMONSTRATION IN FRONT TO THE JURY WHERE THE STATE ORCHESTRATED THE DEMONSTRATION FOR THE PURPOSE OF THE FORCING THE DEFENDANT TO PERFORM ACTS BEFORE THE JURY WHICH WOULD COMMUNICATE HIS GUILT TO THE JURY The Third DCA on November 6, 2013 entered a written opinion that is subject matter of this discretionary review proceeding. See Appendix A infra. 1
SUMMARY ARGUMENT I. Jurisdiction should be accepted where there is no guidance in law by this state where the prosecutor had the Petitioner to show the jury his gait (i.e. walk) to the jury to "communicate guilt" does violate his 5* Amendment protection against self-incrimination of the U.S. Constitution, which prosecutor commented to his gait (i.e. walk) in closing arguments. 2
GROUND ONE THE DISTRICT COURT MISAPPLIED THE LAW WHERE THE TRIAL COURT ALLOWED. THE PROSECUTOR TO DEMONSTRATE PETITIONER'S GAIT (I.E. WALK) TO THE JURY WAS COMMUNICATIVE IN NATURE, THAT VIOLATED HIS 042 5T" AMENDMENT RIGHTS TO THE U.S CONSTITUTION THAT HAS BEEN EXPRESSLY CONSTRUED Under Article V. Sec. 3(b)(3) Florida Constitution Discretionary Review should be granted to the Petitioner on the following bases. The "Due Process Clauses" guarantees that the law will be applied correctly to the facts of a criminal case as well as the law must be appiied equally under State and Federal Constitution. See Article I. Sec. 2 and 9 Fla. Constitution, 14* Amendment U.S. Constitution. The Third District Court of Appeal November 6, 2013 opinion in regard to the Petitioner's 5* Amendment Right protections were expressly construed, where this protection mandates: No person...shall be compelled in any criminal case to be a witness against himself. See 5* Amendment U.S. Constitution. The Third DCA misapplication of law has resulted in the Armed Robbery convictions to be affirmed, when they should have been reversed. See also Murphy v. Waterfront Comm'n of N.Y. Habor, 378 U.S. 52, 55 (1964). Petitioner direct appeal counsel argued in his Initial Brief that "where the Court allowed the 3
prosecutor to show the jury the Petitioner's gait (i.e. walk) was a "communication of his guilt", when comparing it to the suspected perpetrator in a video shown to the jury was a 5th Amendment violation, citing Serratore v. People, 178 Colo. 341, 497 P. 2d 1018 (1972) that the DCA did not cite in its opinions, because it shows Florida Judiciary has no guidance of law on this particular point. Counsel showed relief was granted on this particular point of law by another state to allow the Third DCA to apply the same "Serratore rationale" to this case facts at bar, in absent of relevant Florida law on this point. In Machin v. State, 213 So.2d 979 (Fla. 3'd DCA 1968) the Third DCA held that a Defendant's demonstration of his running capability to the jury was "testimonial" in nature, which the Court in Macias v. State, 515 So.2d 206, 209 (Fla. 1987) overruled, Machin supra. The Third DCA in its written opinion relied upon Macias, supra to deny the Petitioner's claim that does not address the issue that the gait demonstration was a compelling "communication" of guilt by the prosecution to the jury "by making the Petitioner self-incriminate himself before the jury that the 5* Amendment privilege bars. See 5th Amendment U.S. Constitution. Applying the Macias, supra, authority of law to the case fact has expressly construed the Petitioner's 5th Amendment protections of the U.S. Constitution, that requires this Court to exercise it discretionary review authority, because under the 4
authority of Serratore, supra, under the 5th Amendment protection, the Petitioner was denied a fair trial when the prosecution compelled him to demonstrate his gait to the jury was a "communication of guilt" to the jury that is not addressed by state court in Machin or Macias, supra. See 6th Amendment U.S. Constitution. Thus in concern of Due Process of law the U. S. Supreme Court held in Marshall v. Jerrico Inc., 446 U.S. 238, 100 S.Ct. 1610, 1613 64 L.Ed.2d 182 (1980). The Due Process clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceeding safeguard two central concerns of procedural Due Process, the prevention of unjustified or mistake deprivations and the promotion of participation and dialogue by affected individual in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or properly will not be taken on the basis on an erroneous or distorted conception of the facts and law. Id. Marshall, 100 S.Ct. 1610. Clearly the Third DCA opinion is a unjustified deprivation of the Petitioner's 5th Amendment Rights to the U.S. Constitution by denying the gait claim in absent of clearly established law, that violated Petitioner's rights of Due Process of law of the 14th Amendment to the U.S. Constitution, and Article I Sec. 9 Florida Constitution. 5
Thus Petitioner asserts the Third DCA November 6, 2013 opinion of affirming the Armed Robbery convictions is based upon an unreasonable application of law. See Title 28 U.S.C. 2254(h). See Appendix A infra (November 6, 2013 opinion). CONCLUSION The Petitioner prays for the court to accept discretionary review and appoint him counsel thereafter in these proceedings. CERTIFICATE OF SERVICE I HEREBY DO CERTIFY that the foregoing Jurisdictional Brief and Appendix A infra has been placed in the hands of a Department of Corrections official hands for mailing to, Clerk Thomas D. Hall, Supreme Court, 500 South Duval Street, Tallahassee, F1, 32399-1927, and to Attorney General Assistant, Michael W. Mervine, 444 Brickell Avenue, Suite 650 Miami, Florida 33131 on this 2f*day ofnovember 2013. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Jurisdictional Brief complies with the Font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Resp 1 y submitted, CÈlyn Palmer # M59030 Petitioner/pro se Calhoun Corr. Inst. 19562 S.E. Inst. Dr. Blountstown, FL 3242 6
THE FLORIDA SUPREME COURT CATHLYN PALMER, Petitioner, Vs. Supreme Court Case No: DCA Case No: 3D11-3331 L.T. Case No: 09-26658 THE STATE OF FLORIDA, Respondent. Exhibit(s) COVER PAGE OF APPENDIX'S Appendix A. Infra (Third DCA November 6, 2013 written opinion).
Mjírb Ålífftritt Court of ppeal State of Florida, July Term, A.D. 2013 Opinion filed November 6, 2013. Not f'mal until disposition of timely filed motion for rehearing. No. 3D11-3331 Lower Tribunal No. 09-26658 Cathlyn Palmer, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Darrin P. Gayles, Judge. Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee. Before SUAREZ, LAGOA and SALTER, JJ. SALTER, J. Cathlyn Palmer appeals his convictions and sentences for burglary, armed robbery and possession of a firearm while engaged in a criminal offense. We
affirm the convictions for armed robbery, and we reverse the convictions for burglary and for possession of a firearm. The armed robbery convictions are affirmed because we f'md no error in the trial court's direction to the defendant to demonstrate his gait for the jury, at the prosecutor's request. The issue was not properly preserved for appellate review because defense counsel only objected once and on the solitary ground that the demonstration was duplicative. Putting aside the lack of preservation, we find no error in requiring the demonstration. As recognized in Macias v. State, 515 So. 2d 206 (Fla. 1987), demonstrations of this nature are not testimonial and do not violate the defendant's Fifth Amendment rights. The burglary conviction, however, is reversed. The defendant was charged with burglary under section 810.02(1)(b)1., Florida Statutes (2009). That section defines burglary as "[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public...." Id. (emphasis added). Since the state's evidence established that the premises were open to the public,1 this constitutes a complete defense to the charge of burglary. Miller v. State, 733 So. 2d 955, 957 (Fla. 1998). Although this issue also was not preserved for review, a conviction based on insufficient evidence to demonstrate that a crime was committed at all constitutes 1 The criminal incidents took place in a barber shop while it was open for business. 2
fundamental error that can be addressed on appeal. See F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003). The conviction for possession of a firearm while engaged in the commission of a felony also must be reversed. As the state properly concedes, and in light of the elements of the armed robbery charges, this conviction violates double jeopardy. See Williams v. State, 109 So. 3d 831 (Fla. 3d DCA 2013). We affirm the armed robbery convictions, and we reverse the convictions for burglary and for possession of a firearm during the commission of a felony. Affirmed in part, reversed in part, and remanded. 3
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