IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC11-879 L.T. CASE NO. 4D09-527 STATE OF FLORIDA, Petitioner, vs. LEROY MACKEY, Respondent. PETITIONER'S BRIEF ON JURISDICTION PAMELA JO BONDI Attorney General Tallahassee, Florida DANIEL P. HYNDMAN Assistant Attorney General Florida Bar No. 814113 1515 North Flagler Drive Suite 900 West Palm Beach, Florida 33401 Telephone: (561) 837-5000 Counsel for Petitioner
TABLE OF CONTENTS TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...5 ARGUMENT...6 THIS COURT SHOULD ACCEPT JURISDICTION SINCE THE DECISION OF THE FOURTH DISTRICT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF THIS COURT IN STEVEN RICHARD TAYLOR v. STATE OF FLORIDA, STEVEN RICHARD TAYLOR v. WALTER A. MCNEIL, etc., Case Nos. SC09-1382, SC10-143 (Feb. 10, 2011) AND BLANCO v. STATE, 963 So.2d 173 (Fla. 2007) ON THE SAME QUESTION OF LAW CONCLUSION......................... 10 CERTIFICATE OF TYPE SIZE...11 CERTIFICATE OF SERVICE...11 i
TABLE OF AUTHORITIES CASELAW Hardee v. State, 534 So. 2d 706 (Fla. 1988)........................ 9 Blanco v. State, 963 So.2d 173 (Fla. 2007)...................... passim Johnson v. State, 44 So.3d 51 (Fla. 2010 0....................... 6, 7 Mackey v. State, 55 So.3d 606 (Fla. 4 th DCA 2011)................. passim Steven Richard Taylor v. State of Florida, Steven Richard Taylor v. Walter A. McNeil, etc. Case Nos. SC09-1383, SC10-143 (Fla. Feb. 10, 2011)................. passim FLORIDA CONSTITUTION Article V, Section 3(b)(3)................... 6 RULES Rule 9.030(a)(2)(A)(iv), Fla. R. App. P............. 6 ii
PRELIMINARY STATEMENT Petitioner was the prosecution and Respondent was the defendant in the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Petitioner was the Appellee, and Respondent was the Appellant in the Fourth District Court of Appeal ( Fourth District ). The parties will be referenced as they appear before this Court. This Court s decision of Steven Richard Taylor v. State of Florida, Steven Richard Taylor v. Walter A. McNeil, etc., Case Nos. SC09-1882, SC10-143 (February 10, 2011) is published at 36 Fla. L. Weekly S72. However, in the instant brief, citations to this decision will be by slip opinion page number(s). 1
STATEMENT OF THE CASE AND FACTS The Respondent was convicted of first degree-murder and raised three issues on appeal. The Fourth District affirmed his conviction, but remanded for an evidentiary hearing on the denial of his motion for new trial. Mackey v. State, 55 So.3d 606, 607 (Fla. 4 th DCA 2011). The evidence at trial showed the following: a witness, who was familiar with the Respondent, saw him commit a shooting; another witness saw the Respondent walking quickly away from the scene of the shooting; later that day, the Respondent asked a woman to hide a gun for him; she refused, but suggested he hide it under the stairs of her apartment building; she saw the Respondent hide the gun, which had a distinctive silver stripe. Id. at 607-608 When the Respondent was apprehended by the police he made a post-miranda statement that at the time of the shooting he was driving around town with a friend who lived in an apartment located above a Laundromat. Id. at 608. The police could not locate anyone by the friend s name, and confirmed that there were no apartments above a Laundromat. Id. The gun was found under the stairs and ballistics testing confirmed that it was the gun that was used in the shooting. Id. Of the three fingerprints recovered from the firearm one matched the Respondent, one did not match him, and one was insufficient for comparison. Id. 2
The police took DNA swabs from the gun. Id. The investigating detective testified that he submitted the swabs for testing and was informed about two months before trial that the testing had not been performed. Id. He testified that a supervisor told him that testing could not be expedited. Testing was not completed at the time of trial. Id. The Respondent was convicted as charged of first-degree murder and sentenced to life in prison. Id. In his motion for new trial based on newly discovered evidence, the Respondent attached an affidavit from an investigator that a person from the DNA lab told the detective that all expedited testing requests had to be in writing, they did not receive such a request from the detective, and had a request been received testing could be completed in about one week. Id. The motion was denied by the trial court. Id. After addressing two additional issues raised on appeal, the Fourth District discussed the trial court s denial of the Respondent s motion for new trial. Id. at 608-609. The Court agreed with the Petitioner s argument that the Respondent failed to preserve this issue for review: in the trial court, the Respondent argued that the investigator s affidavit established newly discovered evidence; on appeal he argued that it established prosecutorial misconduct. Id. at 609-610. The motion for new trial did not allege prosecutorial misconduct or cite rule 3.600(b)(5) or 3
Giglio. Id. at 610. However, the Fourth District then interpreted language in this Court s recent decision of Johnson v. State, 44 So.3d 51, 53 (Fla. 2010) to mean that a Giglio violation can constitute fundamental error which may be raised on appeal even if not properly preserved. Mackey at 610. Turning to the merits of the Respondent s claim, the Fourth District discussed the three prongs that establish a Giglio violation and held that the investigator s affidavit provided prima facie allegations that the detective who checked on the DNA samples may have knowingly testified falsely. Id. Although the affidavit was based on hearsay which the DNA lab personnel allegedly provided to the investigator, the affidavit was not so inherently incredible or obviously immaterial to the verdict that the trial court should have summarily denied the motion. Id. Rather, the affidavit should have prompted the trial court to hold an evidentiary hearing because: (1) the defendant s investigator was not a lay witness; (2) the DNA lab personnel whom the investigator identified are employed by the state; and (3) during trial, the defendant impeached the woman who identified him as the person who shot the victim. Id. at 611. Cautioning that this holding should not be construed to mean that every motion for new trial alleging a Giglio violation automatically warrants an evidentiary hearing, the Fourth District concluded that [i]n this case, we believe that an evidentiary 4
hearing would be appropriate to allow the defendant the opportunity to establish that the state knowingly presented false testimony and, if established, to allow the state to show that its use of this testimony was harmless beyond a reasonable doubt. Id. SUMMARY OF THE ARGUMENT This Court should accept jurisdiction. The decision of the Fourth District expressly and directly conflicts with the decisions of this Court in Steven Richard Taylor v. State of Florida, Steven Richard Taylor v. Walter A. McNeil, etc., Case Nos. SC09-1382, SC10-143 (Fla. February 10, 2011) and Blanco v. State, 963 So.2d 173 (Fla. 2007) on the same questions of law. The decision of the Fourth District holds that a claim of a Giglio violation need not be preserved for appeal. However, in Blanco this Court held that when a defendant failed to argue a Giglio claim it was waived and would not be addressed on appeal. Therefore, as to the issue of preservation, the decision of the Fourth District is in conflict with Blanco. Furthermore, as to the materiality requirement of a Giglio claim, the decision of the Fourth District is in conflict with Taylor. In that decision this Court held that claims that the state s DNA testing procedures deviated from FBI protocol did not meet the materiality requirement of Giglio. The Petitioner submits that what the detective in the instant case may have been told about expedited DNA testing requests is no more material that the 5
DNA testing procedures discussed in Taylor. ARGUMENT THIS COURT SHOULD ACCEPT JURISDICTION SINCE THE DECISION OF THE FOURTH DISTRICT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF THIS COURT IN STEVEN RICHARD TAYLOR v. STATE OF FLORIDA, STEVEN RICHARD TAYLOR v. WALTER A. MCNEIL, SC09-1382, SC10-143 (Feb. 10, 2011), AND BLANCO v. STATE, 963 So.2d 173 (Fla. 2007) ON THE SAME QUESTION OF LAW The Petitioner has invoked the discretionary jurisdiction of this Court pursuant to Rule 9.030(a)(2)(A)(iv), Fla. R. App. P, and Article V, Section 3(b)(3), Constitution of the State of Florida. The decision of the Fourth District expressly and directly conflicts with this Court s decisions in Taylor and Blanco on the same question of law. In the case at bar, the Fourth District agreed with the Petitioner that the Respondent s argument on appeal was not preserved because the motion for new trial did not allege prosecutorial misconduct or cite rule 3.600(b)(5) or Giglio. Mackey at 610. However, the Court interpreted this Court s recent decision in Johnson v. State, 44 So.3d 51, 53 (Fla. 2010) to mean that a Giglio violation can constitute fundamental error which may be raised for the first time on appeal even if not properly preserved. Mackey at 610. The Respondent submits that this holding is in direct conflict with this Court s Blanco decision. In Blanco the defendant raised 6
an issue on appeal that the State s failure to run his fingerprints through the Automated Fingerprint Identification System (AFIS) violated both Brady and Giglio. Id. at 176-177. This Court concluded that the issue was not preserved for review: At the hearing on the AFIS motion, Blanco expressly disavowed that he was arguing newly discovered evidence, and he did not allege Brady or Giglio violations either. Accordingly, these claims are waived and we do not address them. Id. at 177. The Fourth District s holding that a Giglio claim can be raised for the first time on appeal is in direct conflict with Blanco s holding that the Giglio claim in that case was waived for appeal. Furthermore, although the Fourth District cites this Court s Johnson decision, the Petitioner respectfully submits that it has misinterpreted that decision. The Petitioner would observe that in Johnson the Giglio claim was preserved for review. Id. at 65-67. The Petitioner further submits that the Fourth District s conclusion that the detective s allegedly false testimony as to what he was told about expedited DNA testing results could constitute material evidence is in direct conflict with this Court s Taylor decision. In Taylor, this Court found that the defendant s claims regarding FBI/FDLE protocols did not satisfy the materiality prong of Giglio: Taylor asserts that the FBI/FDLE protocols, allegedly not provided by the State 7
until postconviction litigation, established that Dr. Pollock either changed the protocol or violated the protocol in his conclusions. The only violation identified by Taylor, however, is the fact that the FBI protocols utilized five to eight probes, while Dr. Pollock only used four. This violation according to the defense s expert, undermined the reliability of the DNA evidence. During the evidentiary hearing, Dr. Pollock acknowledged that he deviated from the FBI protocols. The only evidence presented by Taylor during the evidentiary hearing that directly challenged Dr. Pollock s ultimate findings, however, was the testimony of Dr. Libby, whom the postconviction court explicitly determined to be unreliable. Although the postconviction court did not examine this evidence in the context of a Brady or Giglio violation, it still assessed the credibility of Dr. Libby with regard to Dr. Pollock s ultimate findings. The postconviction court considered and rejected, the relevance of the FBI FDLE protocols in the ineffective assistance of counsel context. Taylor, slip opinion pages 21-22.... Even if we assume that the State inadvertently failed to disclose these protocols, in light of the trial court s findings of fact, the alleged violations cannot reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Smith, 931 So.2d at 796 (quoting Stickler, 527 U.S. at 290)(articulating the materiality prong of Brady). Further, there is no reasonable possibility that the allegedly false testimony could have affected the judgment of the jury. See id. (articulating the materiality prong of a Giglio claim). Accordingly, this subclaim fails under the materiality prongs of both Brady and Giglio. Id. at 22-23. 8
The Petitioner respectfully submits that what the detective may or may not have been told about expedited testing requests is even less material than any deviations from testing protocols discussed in Taylor. This Court also held that differences in DNA strands tested by Dr. Pollock and another person were immaterial under Giglio. Id. at 23-24. The Petitioner submits that under Taylor the Giglio claim in the instant claim would be deemed immaterial. Moreover, in the instant case, the DNA results would appear to be completely immaterial; it was already shown through fingerprint evidence and eyewitness testimony that the Respondent was in possession of the firearm in question. Consequently, the decision of the Fourth District is in conflict with Taylor on this point. Finally, the Petitioner respectfully submits that a fair application of either Blanco (as to preservation) or Taylor (as to materiality) to the instant case should have resulted in an affirmance of the order of the trial court denying the Respondent s motion for rehearing. Consequently, the instant decision is in express and direct conflict with those decisions. C.f., Hardee v. State, 534 So. 2d 706 (Fla. 1988)(when there is a fair implication of conflict, there is a basis for conflict jurisdiction). This Court should therefore accept jurisdiction based on conflict between the instant decision and the decisions of this Court. 9
CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Petitioner respectfully requests that this Court accept discretionary review. Respectfully submitted, PAMELA JO BONDI Attorney General Tallahassee, Florida Daniel P. Hyndman Assistant Attorney General Florida Bar No. 814113 1515 North Flagler Drive Suite 900 West Palm Beach, FL 33401 (561) 837-5000 Counsel for Petitioner 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing "Petitioner s Brief on Jurisdiction" has been furnished by U.S. Mail on May 27, 2011 to David John McPherrin, Assistant Public Defender, Office of the Public Defender, Appellate Division, 421 Third Street, Sixth Floor, West Palm Beach, Fl 33401. DANIEL P. HYNDMAN CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R. App. P. 9.210, the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type. DANIEL P. HYNDMAN 11