IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, COURT CASE NO.: 2015-CF-1564/A OSP No.: 2015-66-0RL v. ROLAND BRUTUS, Defendant. I STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS INFORMATION DUE TO PROSECUTORIAL MISCONDUCT COMES NOW the Chief Assistant Statewide Prosecutor and submits this response to the Defendant's Motion to Dismiss Information Due to Prosecutorial Misconduct. The State would show: 1. Initially, the defense alleges Assistant Statewide Prosecutor Nicole Pegues [hereinafter "Pegues"] withheld Brady information relating to an improper romantic relationship between State witnesses William Cain [hereinafter "Cain"] and Tara Reynolds [hereinafter "Reynolds]. 2. The defense, relying on deposition testimony of Cain given on October 24, 2016, asserts that Pegues became aware of the relationship between Cain and Reynolds as early as January of2016. The actual time frame in which Pegues gained this knowledge can be fixed by reference to the defense's Notice of Taking of Deposition dated April 7, 2016 [see Exhibit 1]. 3. Cain, in his deposition, recalled that the conversation with Statewide Prosecution personnel regarding the Cain/Reynolds relationship came up in the context of"... a deposition or something. Something along those lines." [see Exhibit 2--Cain deposition at page 14]. 4. When asked whose deposition brought up the issue, Cain testified that is was "[E]ither Tameka Herd or Jessica Gallow [sic]. One of those two." [see Exhibit 3--Cain deposition at page 15]. In actuality, the depositions of Jessica Gallo and Tameka Herd were set originally to go forward on April 20, 2016 [see Exhibit 1]. The Gallo deposition did, in fact, take place on that date. 1
5. According to Cain, he told Pegues about his relationship with Reynolds after the issue was raised in the deposition of Gallo or Herd. Pegues did not possess this knowledge in January of2016. 6. Instead, Pegues learned of the relationship on approximately March 29, 2016. This is reflected in text traffic on either side of a phone conversation which occurred with Cain [see Exhibit 4]. Note the indication in the text that Pegues clearly understood that information about the relationship would have to be disclosed pursuant to the Rules of Discovery. 7. Following the initial uncovering of news of the relationship between Cain and Reynolds, Pegues clearly understood that she would likely have to file something with the Court about what had occurred, and was extending to Cain the courtesy of an opportunity to inform his superior at MBI. Pegues texted to Cain on March 30: "The Director knows, right? I don't want to file something that would surprise him." [see Exhibit 5] 8. Continuing in this manner, on April 20, 2016, Pegues texted Cain to ensure he had advised the MBI Director of the relationship with Reynolds. Upon learning that information had still not been conveyed by Cain, Pegues responded as follows: "OK let me know when he knows because there are people I have to let know and I don't want to step on your toes" [see Exhibit 6]. 9. On at least one occasion prior to that date, Pegues brought up this issue with counsel for the defense. His knowledge of the relationship was displayed during the Gallo deposition of April 20, 2016, when he asks of witness Gallo: "Are you familiar with the fact that Tara Reynolds was having a relationship with William Cain?" [see Exhibit 7--Gallo deposition at page 9]. 10. Further, counsel for the defense, in the fourth paragraph of his motion, references his becoming aware of the relationship at some point following the dismissal of Reynolds' charges by the State. Those charges were dismissed on July 13, 2015. 11. Next, allegations made by defense counsel in his Motion to Dismiss are a misrepresentation of, and completely ignore, the State's efforts to secure the respective locations of witnesses Cain and Reynolds for purposes of receiving service for their depositions. 12. On April 18, 2016, the defense requested a revised address for Reynolds from the State, as they had become aware that 1700 Furey Drive was no longer Reynolds' residence [see Exhibit 8]. 13. On April 19, 2016, Pegues, through her assistant, provided the most recent address available for Reynolds--4336 Cypress Bay Court in Orlando [see Exhibit 9]. 2
14. Subsequently, times and manner of deposition were discussed and arranged between the State and defense. A date of May 26 was agreed upon [see Exhibit 10]. Later, at the defense request, the deposition was rescheduled for a date in June [see Exhibit 11]. 15. By email dated June 3, the defense requested a new address for Reynolds, as service was unsuccessful at 4336 Cypress Bay Court [see Exhibit 12]. 16. By email dated June 6, in an email from Pegues' assistant to the defense, the State references having been unsuccessful in attempting to reach Reynolds by phone, and indicates attempts will be made to locate a new address for Reynolds [see Exhibit 13]. The 4336 Cypress Bay Court address had been relied upon by the State as a good address for Reynolds by virtue of a database check [see Exhibit 14]. 1 7. By email dated June 8, yet another address was provided by the State to the defense as a possible location for Reynolds--780 Eldridge Street [see Exhibit 15]. 18. By email dated June 10, the defense, through his assistant, requested that the State produce Reynolds for deposition since all three addresses previously provided by the State resulted in unsuccessful service [see Exhibit 16]. 19. By email dated June 22, the State, through Pegues' assistant, reiterated an awareness of the situation regarding securing service for Ms. Reynolds, as well as pledging continued efforts to secure a viable address for her [see Exhibit 17]. 20. On June 27, Pegues, through her assistant, left a voicemail for Reynolds, again attempting to secure her appearance for deposition [see Exhibit 18]. 21. On July 6, 2016, the State's analyst requested wage and hour information regarding Reynolds in a further attempt to locate her [see Exhibit 19]. 22. In late July, Pegues, in an intra-office email, memorialized her request made to Cain for assistance in locating Reynolds [see Exhibit 20]. 23. On October 10, 2016, Pegues solicited the assistance ofmbi Director Stucker for the purpose of having Cain served. Pegues had previously relied on Cain to provide that information and took it on faith that this could be accomplished by directing the subpoena to FHP, which was the address provided by Cain to Pegues [see Exhibit 21]. 24. Cain was finally served with a subpoena on October 14, 2016, for a Show Cause hearing. The address at which he was served was 1102 Maury Road [see Exhibit 22]. Regarding Reynolds, he indicated to the process server that "she left the area a few months ago and he has no forwarding address for her" [see Exhibit 23]. 3
25. Reynolds was finally served with a subpoena on October 18, 2016, for a Show Cause hearing. The address at which she was served was 1102 Maury Road [see Exhibit 24]. This would seem to contradict Cain's statement of four days earlier to the process server. 26. In his October 24 deposition, Cain admitted to knowingly providing Pegues with a useless address for service purposes [see Exhibit 25--Cain deposition, page 34]. 27. Also at this deposition, Cain admitted to still being in a relationship with Reynolds [see Exhibit 26--Cain deposition, page 8]. He also revealed that he and Reynolds began living together "recently" [see Exhibit 27--Cain deposition, page 30], though he was unable to recall which month of the past several this phase of their relationship commenced. 28. In sum, and in direct contradiction of the baseless and reckless accusations made in the defense motion, an examination of the actual documentation which relates to this situation reveals (1.) Pegues became aware of the Cain/Reynolds relationship on or about March 29, 2016, and affirmatively conveyed this information to defense counsel, who was already aware of it, prior to April 20, 2016; (2.) Pegues and her staff made numerous attempts to secure accurate addresses to effectuate the subpoena service of Cain and Reynolds; and (3.) Cain actively attempted to prevent service on himself, as well as service of Reynolds. 29. Unfortunately, counsel for the defense in this matter did not limit himself to merely making argument, however ill-conceived, on behalf of his client. Instead, he launched a gratuitous and personal attack on Pegues specifically and the Office of Statewide Prosecution generally. This was done in the apparent hope that the prosecutor would be pressured by threat of his words into taking action on a case prior to a complete review of its circumstances being undertaken. While this Office respects greatly the duty of zealous representation owed from defense attorney to client, resorting to such tawdry tactics diminishes the entire process upon which our system of justice is founded. 30. There being no action taken in these circumstances by the State which was remotely improper, the defense Motion to Dismiss should be denied. Wherefore the State respectfully requests that this Honorable Court deny the defendant's Motion to Dismiss Information Due to Prosecutorial Misconduct. 4
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been fy.rnished by electronic filing to Bruce Lehr, Esquire, at blehr@llmlawfirm.com, on this / day of November, 2016. Robert C. Finkbeiner Chief Assistant Statewide Pros cutor Florida Bar Number 093 8904 135 West Central Boulevard Suite 1000 Orlando, Florida 32801 ( 407) 245-0893 Robert.finkbeiner@myfloridalegal.com ' \_ f UJ l 'Nicole Pegues Assistant Statewid~, rosecutor Florida Bar Number 0191851 135 West Central Boulevard Suite 1000 Orlando, Florida 32801 ( 407)245-0893 Nicole.pegues@myfloridalegal.com 5