IN THE SUPREME COURT OF THE STATE OF FLORIDA SUPREME COURT CASE NO. SC-11-1477 4 TH DCA CASE NO. 4D08-4729 BRIAN HOOKS, ) Petitioner, ) vs. ) STATE OF FLORIDA, ) Respondent. ) ) PETITIONER S BRIEF ON JURISDICTION JEREMY J. KROLL, ESQ. Counsel for Petitioner Florida Bar No. 0096466 Bogenschutz, Dutko & Kroll, P.A. 600 South Andrews Avenue, Suite 500 Fort Lauderdale, FL 33301 Phone: (954) 764-2500 Email: jkrollesq@bellsouth.net And DONNA L. ENG, ESQ. Florida Bar No. 115673 Donna Eng, P.A. 601 Heritage Drive, #430 Jupiter, FL 33458 Phone: (561) 318-1535 Email: donna@englawpa.com
TABLE OF CONTENTS TABLE OF CONTENTS.. ii TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 THIS COURT SHOULD EXERCISE DISCRETIONARY JURISDICTION BECAUSE THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH ROLLING V. STATE CONCLUSION. 10 CERTIFICATE OF SERVICE.. 11 CERTIFICATE OF FONT SIZE... 12 ii
TABLE OF AUTHORITIES Cases Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986)... 4 Aguilera v. Inservices, Inc., 905 So. 2d 84, 86-87 (Fla. 2005)... 4 Hooks v. State, No. 4D08-4729, --So. 3d --; 2011 WL 2555387 (Fla. 4 th DCA June 29, 2011).... 1, 3, 4, 7, 8, 10 Kelley v. State, 212 So. 2d 27, 28 (Fla. 2d DCA 1968)... 5 Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003)... 4 Manning v. State, 378 So. 2d 274, 276 (Fla. 1979)... 5 McCaskill v. State, 344 So. 2d 1276 (Fla. 1977).... 5 Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002)... 4 Rolling v. State, 695 So. 2d 278 (Fla. 1997).... 3, 4, 5, 6, 7, 8, 9 Sheppard v. Maxwell, 384 U.S. 333, 362 (1966)....5, 8 Other Authorities Art. V, 3(b)(3), Fla. Const....3, 4 Rules Fla. R. App. P. 9.030(a)(2)(A)(iv)...3, 4 iii
PRELIMINARY STATEMENT Petitioner, Brian Hooks, was the Defendant in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County. He was the Appellant in the Fourth District Court of Appeal, and the State of Florida was the Appellee. In this brief, the parties shall be referred to as they appear before this Honorable Court, or as Hooks or the State. The District Court decision is reported as Hooks v. State, No. 4D08-4729, -- So. 3d --; 2011 WL 2555387 (Fla. 4 th DCA June 29, 2011). A timely Notice to Invoke Discretionary Jurisdiction was filed on July 25, 2011. A copy of the District Court s decision is included in Appendix A. STATEMENT OF THE CASE AND FACTS As noted in the decision by the Fourth District Court of Appeal, Hooks was indicted with one count of first degree murder and two counts of second degree murder in connection with attacks on three homeless men in Fort Lauderdale. Hooks entered a plea of not guilty and moved for a change of venue. The Court summarized the facts relevant to Hooks motion to change venue as follows:... the defendant moved for a change of venue, which was accompanied by three affidavits and eighty-six media reports exhibiting the intense media coverage received by this case. In response to this media coverage, the trial court entered orders precluding extrajudicial comment. The amended order noted: The instant case has already garnered a great amount of national and local 1
coverage, and this Court believes that some extrajudicial comments may very well have already been prejudicial to the respective [parties'] rights. The trial court ordered the pre-screening of four hundred jurors, sealed the names and addresses of the jurors, and prohibited the filming or photographing of their faces. However, the trial court did allow the media to record their audible responses. During the first round of jury selection, defense counsel advised the court that all the major newscasts had shown the surveillance video of the first incident the night before. Certain jurors confirmed being exposed to the news coverage, while others possessed copies of the local newspaper containing an article about the case. Of those jurors who had read the article, some had just read the article and others had discussed it as well. The trial court acknowledged the publicity generated by the case, and commented: [T]he blogs are the most disconcerting thing for the Court. People have very, very strong opinions once they have seen this video. I mean, it's really disturbing, actually. And we saw it yesterday with people coming in that you know, I seen that video and I can't put that out of my head and we tried our best to we are trying to find a fair and impartial jury for these defendants here. And yet, some internet comments and online articles were either sympathetic to the defendants or unsympathetic to the homeless. Still, other comments focused on the defendants' right to a fair trial. After pre-screening jurors, the defendant filed a renewed motion for change of venue with supplementary exhibits. The defendant requested to individually voir dire the jurors concerning the pre-trial publicity, and filed a motion for jury sequestration. The court denied the request to sequester the jurors. The trial court took the motion for change of venue under advisement, noting the 529 jurors examined and the routine showing of the surveillance video. The defendant renewed all of his pre-trial objections and motions, all of which were again denied. 2
After opening statements, the trial court instructed the jury not to watch the news, read the paper, or talk to anyone about the case. Media coverage continued throughout the trial. During the trial, the third victim gave an interview outside the courthouse, which caused defense counsel to renew the motion for sequestration and move for a mistrial. The trial court questioned each juror individually, but denied the motions. The trial continued and the defendant once again renewed his motion for sequestration. Counsel cited numerous articles: a biography of one of the victims; an interview with the parents of the deceased victim; and a video featuring a good friend of the deceased victim that appeared on a website with footage of the funeral and the videotape of the incident. The defendant again renewed his motion for change of venue. The trial court denied the motions, noting the jurors' obvious awareness of the community's interest since jury selection started due to the amount of press that's been in the courtroom. Hooks, 2011 WL 2555387 at *1-*2. Hooks was convicted of second degree murder with a weapon and attempted second degree murder with a weapon, and sentenced to thirty (30) years in prison, all counts concurrent. See Id. SUMMARY OF THE ARGUMENT Pursuant to Article V, Section 3 of the Florida Constitution and Fla. R. App. P. 9.030(a)(2)(A)(iv), this Court should exercise discretionary jurisdiction to review the instant case because the opinion of the Fourth District Court of Appeal expressly and directly conflicts with Rolling v. State, 695 So. 2d 278 (Fla. 1997). Moreover, because the Fourth District s application of Rolling, 695 So. 2d 278, cannot be reconciled with today s media culture, this Court must exercise discretionary jurisdiction in this case. 3
ARGUMENT THIS COURT SHOULD EXERCISE DISCRETIONARY JURISDICTION BECAUSE THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH ROLLING V. STATE Hooks respectfully requests this Court to exercise discretionary review of the Fourth District Court of Appeal s decision in Hooks v. State, No. 4D08-4729, --So. 3d --; 2011 WL 2555387 (Fla. 4 th DCA June 29, 2011), because such decision is in conflict with this Court s decision in Rolling v. State, 695 So. 2d 278 (Fla. 1997). This Court may review a decision of a district court of appeal that directly and expressly conflicts with a decision of another district court or of the supreme court on the same question of law. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). This Court has exercised conflict jurisdiction based on a misapplication of decisional law. See Aguilera v. Inservices, Inc., 905 So. 2d 84, 86-87 (Fla. 2005) (citing Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003) (accepting jurisdiction based on conflict created by misapplication of decisional law); Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002) (stating that misapplication of decisional law creates conflict jurisdiction); Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986) (accepting jurisdiction based on conflict created by misapplication of decisional law)). 4
[P]rejudice may warrant a change of venue when widespread public knowledge of the case in the proper county causes prospective jurors there to judge the defendant with great disfavor because of his character or the nature of the alleged offense. Rolling, 695 So. 2d at 284 (quoting Manning v. State, 378 So. 2d 274, 276 (Fla. 1979)). The trial court must determine whether a defendant has raised a presumption of prejudice. See Rolling, 695 So. 2d at 284-285 (quoting Kelley v. State, 212 So. 2d 27, 28 (Fla. 2d DCA 1968) (as quoted in McCaskill v. State, 344 So. 2d 1276 (Fla. 1977)). However, on appeal,... the appellate court has the duty to make an independent evaluation of the circumstances. Rolling, 695 So. 2d at 285 (quoting Sheppard v. Maxwell, 384 U.S. 333, 362 (1966)). In exercising its discretion, a trial court must make a two pronged analysis, evaluating: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury. Rolling, 695 So. 2d at 285. Under the first prong, five (5) factors must be considered by the trial court, including (1) the length of time that has passed from the crime to the trial and when, within this time, the publicity occurred... (2) whether the publicity consisted of straight, factual news stories or inflammatory stories... (3) whether the news stories consisted of the police or prosecutor s version of the offense to the exclusion of the defendant's version... (4) the size of the community in question... and (5) whether the defendant exhausted all of his peremptory challenges... Rolling, 5
695 So. 2d. at 285 (citations omitted). The second prong requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire. Id. In Rolling, this Court noted that to be qualified, jurors need to be able to lay aside their impressions or opinions, and render a verdict based solely on the evidence presented in court. See Id. at 285. However, notwithstanding the fact that prospective jurors may assure the court that they can be impartial despite any extrinsic knowledge, and that such assurances may support a presumption of impartiality, the Rolling Court observed that such assurances are not dispositive. Rolling, 695 So. 2d at 285. This Court should exercise discretionary jurisdiction for two reasons. First, the Fourth District misapplied Rolling in several respects. Second, the Fourth District s application of Rolling cannot be reconciled with today s media culture. The Fourth District misapplied several of the Rolling first-prong factors. In its application of the first factor, the length of time between the crime and trial, and when the publicity occurred, the Fourth District failed to consider that much of the publicity occurred during jury selection and trial, that some of it occurred on the courthouse steps, and that the media published the faces of the jurors in violation of the trial court s order, leading to several of the jurors being contacted by family 6
or co-workers about their service. As to the second factor, whether the publicity consisted of factual news or inflammatory stories, the Fourth District focused solely on reports by the formal media, and failed to address the fact that the trial court observed that public commentary on internet blogs was the most disconcerting. As to the fifth factor, although the Fourth District accurately noted that Hooks exhausted all of his peremptory strikes, the Fourth failed to note that the trial court refused to grant Hooks final request for additional peremptory strikes, notwithstanding the fact that the court had called up still more jurors to be examined after the initial group of 529. See Hooks, 2011 WL 2555387 at *3. The Fourth District also misapplied the second prong of Rolling. Although the Court accurately quoted the trial court s duty to examine the extent of difficulty in actually selecting an impartial jury at voir dire, Rolling, 695 So. 2d at 285, the Fourth District failed to address the second prong of the analysis in the same terms as Rolling. Specifically, the Rolling Court noted that under the second prong, the Court was required to determine whether any difficulty encountered in selecting a jury in this case reflected a pervasive community bias against [Hooks] which so infected the jury selection process that it was impossible to seat an impartial jury in [Broward] County. Rolling, 695 So. 2d. at 287 (emphasis added). The Fourth District made no reference to such quoted standard. Hooks, 2011 WL 2555387 at *4. However, the record on appeal shows that the trial court 7
was forced to call up additional jurors after the initial group of 529, and that the trial court commented on the difficulties being encountered during jury selection, stating, [i]t s a lot of people, and,... people were coming in last week because the video has been played consistently since we ve been trying to pick a jury. The Fourth District also misapplied Rolling by failing to make an independent evaluation of the circumstances in determining whether Hooks raised a presumption of prejudice sufficient to warrant a change of venue. See Rolling, 695 So. 2d at 285 (quoting Sheppard, 384 U.S. at 362). In its analysis, the Fourth District focused solely on news reports by the formal media. See Hooks, 2011 WL 2555387 at *2-*4. However, the Fourth failed to consider that (1) a great deal of media coverage consisted of prejudicial comments posted on internet blogs by members of the public, which the trial court found to be the most disconcerting; (2) the news media published the faces of the jury, in violation of the trial court s order, and that after such publication, several members of the jury were confronted by co-workers or family regarding their service; and, (3) one juror who sat on Hooks panel admitted that her husband s comments upset her. The Fourth District s failure to consider all of the relevant facts shows that the Court failed to conduct any independent evaluation of the case whatsoever. Rather than engage in the required independent evaluation, the Fourth instead chose to merely rubber stamp the result below. 8
Finally, and perhaps most importantly, the Fourth District s application of Rolling cannot be reconciled with today s media culture. The Rolling decision issued in 1997, many years before the advent of social media like Twitter and Facebook, and many years before a time when the general public was able to post immediate commentary to news reports on the internet for the world to see. The Fourth District s application of Rolling appears to have been conducted in a vacuum, with little to no consideration of such factors at all. In Rolling, 695 So. 2d at 286, public commentary was part of the Court s analysis. However, the manner in which the public comments were gathered and presented when Rolling was decided was completely different than today. Whereas in Rolling, 695 So. 2d at 286, the newspaper gathered comments which had been mailed in, and then published comments on both sides of the issue of the death penalty, here, the media performed no such moderator or gatekeeper function. As noted in the Fourth District s recitation of the facts, after being exposed to some of the internet postings by the public, the trial court observed that some of the extrajudicial comments may have been prejudicial, and that the blogs were the most disconcerting of all the press coverage. However, the Fourth conducted its analysis of the Rolling factors as if no public comments had been made. The Fourth District s application of the Rolling factors contains no discussion of the fact that public comments were being made, or the fact that the trial court openly 9
expressed misgivings about such comments on the record on more than one occasion. In fact, the Fourth District s application does not even seem to consider, in any form or fashion, the admittedly disconcerting and prejudicial public commentary being made during the entire jury selection process, and during the trial itself. See Hooks, 2011 WL 2555387 at *2-*4. Because the Fourth District s application of Rolling cannot be reconciled with today s media culture, Hooks respectfully asks this Court to exercise discretionary jurisdiction herein. CONCLUSION In conclusion, based on the foregoing argument and authorities cited, Hooks respectfully requests this Honorable Court to exercise discretionary jurisdiction over the instant case. Respectfully submitted, BOGENSCHUTZ, DUTKO & KROLL, P.A. Counsel for Petitioner 600 South Andrews Avenue, Suite 500 Fort Lauderdale, FL 33301 Phone: (954) 764-2500 Facsimile: (954) 764-5040 Email: jkrollesq@bellsouth.net BY: JEREMY J. KROLL, ESQ. Florida Bar No. 0096466 And 10
DONNA ENG, P.A. 601 Heritage Drive, #430 Jupiter, FL 33458 Phone: (561) 318-1535 Facsimile: (561) 655-5353 Email: donna@englawpa.com BY: DONNA L. ENG, ESQ. Florida Bar No. 115673 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Hooks Petitioner s Brief on Jurisdiction, including Appendix, has been furnished by U.S. Mail this day of July, 2011, to JEANINE GERMANOWICZ, Esq., Assistant Attorney General, Criminal Appeals Division, 1515 North Flagler Drive, 9 th Floor, West Palm Beach, Florida, 33401-3432. Donna L. Eng, Of Counsel 11
CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that the instant brief has been prepared in compliance with Fla. R. App. P. 9.210(a)(2), using Microsoft Word 14 point Times New Roman font. Donna L. Eng, Of Counsel 12
IN THE SUPREME COURT OF THE STATE OF FLORIDA SUPREME COURT CASE NO. SC-11 4 TH DCA CASE NO. 4D08-4729 BRIAN HOOKS, ) Petitioner, ) vs. ) STATE OF FLORIDA, ) Respondent. ) ) APPENDIX TO PETITIONER S BRIEF ON JURISDICTION Hooks v. State, No. 4D08-4729, --So. 3d --; 2011 WL 2555387 (Fla. 4 th DCA June 29, 2011). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Appendix to Petitioner s Brief on Jurisdiction, including a copy of the decision under review has been furnished by U.S. Mail this day of July, 2011, to JEANINE GERMANOWICZ, Esq., Assistant Attorney General, Criminal 1
Appeals Division, 1515 North Flagler Drive, 9 th Floor, West Palm Beach, Florida, 33401-3432. Donna L. Eng, Of Counsel 2