Reply Brief - Fourth District Court of Appeal

E-Copy Received May 30, 2014 7:17 PM
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSE LUIS LOPEZ
Appellant,
vs.
CASE NO.: 4D13-1859
STATE OF FLORIDA,
Appellee.
__________________________/
REPLY BRIEF OF APPELLANT
On Appeal from the Circuit Court of the
19th Judicial Circuit, in and for
Martin County, Florida
[Criminal Division]
MARGARET GOOD-EARNEST
GOOD-EARNEST LAW, P.A.
Florida Bar No. 192356
P.O. Box 1161
Lake Worth, FL 33460
(561) 533-0111
[email protected]
Counsel for Appellant
TABLE OF CONTENTS
ARGUMENT…………………………………………………………………....1
POINT I -THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING
THE STATE’S MOTION TO ADMIT S’s COLLATERAL CRIME
EVIDENCE TO PROVE PROPENSITY. THE TESTIMONY OF S THAT
APPELLANT “GROPED” HER BREAST DURING A GAME OF HIDE
AND SEEK TAG SOME UNKNOWN YEARS PRIOR TO THE CHARGED
OFFENSE WAS NOT PROVED TO BE AN ACT OF CHILD
MOLESTATION BY CLEAR AND CONVINCING EVIDENCE, HAD NO
RELEVANCY EXCEPT TO SHOW PROPENSITY AND WAS HIGHLY
PREJUDICIAL……………………………………………..…………………..…1
POINT II-THE TRIAL COURT ERRED REVERSIBLY BY GIVING THE
STATE’S AMENDED COLLATERAL CRIME EVIDENCE INSTRUCTION
THAT TOLD THE JURY THEY COULD USE THE COLLATERAL CRIME
EVIDENCE AS PROOF OF THE DEFENDANT’S PROPENSITY. THE
DEFENDANT’S
OBJECTION
THAT
THE
NON-STANDARD
INSTRUCTION WAS NOT THE LAW, WAS CONFUSING AND
PREJUDICIAL
SHOULD
HAVE
BEEN
SUSTAINED………………………………………………………………………3
POINT III-THE TRIAL COURT DENIED APPELLANT’S RIGHT TO
PRODUCE EVIDENCE IN HIS OWN DEFENSE BY SUSTAINING THE
STATE’S OBJECTIONS TO 1) DR BEN TAYLOR’S TESTIMONY THAT
AN EXTENSIVE BATTERY OF SEX OFFENDER IDENTITY TESTS
SHOWED APPELLANT LACKED ANY PROPENSITY TO COMMIT
CRIMES ON CHILDREN; 2) FAMILIES AND FRIENDS TRUSTED
APPELLANT TO PLAY WITH THEIR CHILDREN WHO HAD NEVER
HARMED OR TOUCHED A CHILD INAPPROPRIATELY AND 3) SELENA
LOPEZ’TESTIMONY THAT APPELLANT PLAYED WITH HIS
RELATIVES’ CHILDREN SO HIS NIECES COULD INTERACT WITH A
TRUSTED ADULT (AS A THOUGHTFUL FAMILY CONTRIBUTION
FROM
APPELLANT’S
GROWING
UP
WITHOUT
A
FATHER)……………………………………………………………………..…...7
ii
POINT IV-THE TRIAL COURT ERRED AS A MATTER OF LAW IN
IMPOSING SENTENCE ON THE MISTAKEN BELIEF THAT THE
LOWEST POSSIBLE MINIMUM SENTENCE WAS A 25 YEAR
MANDATORY MINIMUM. APPELLANT IS ENTITLED TO A NEW
SENTENCING HEARING WHEN THE FLORIDA SUPREME COURT
SETTLES THE CONFLICT NOW BEFORE THAT COURT, ADOPTING
THE SECOND DISTRICT’S MONTGOMERY V. STATE, 36 So. 3d 188 (Fla.
2d DCA 2010) DECISION ALLOWING FOR A LESSER PENALTY FOR AN
800.04 CONVICTION INSTEAD OF THIS COURT’S CONFLICING
DECISION IN ROCHESTER V. STATE, 95 So. 3d 407(Fla. 4th DCA
2012)…………………………………………………………..……………………7
CONCLUSION…………………………………………………………………..9
CERTIFICATE OF SERVICE………………………………………………....10
iii
TABLE OF CITATIONS
Cases
Ellis v. State,
816 So. 2d 759 (Fla. 4th DCA 2002) .....................................................................8
McLean v. State,
934 So. 2d 1248 (Fla 2006)............................................................................ 1-2, 6
Montgomery v. State,
36 So. 3d 188 (Fla. 2d DCA 2010) .................................................................. iii, 8
Palmore v. State,
838 So.2d 1222 (Fla. 1st DCA 2003) ....................................................................6
Rochester v. State,
95 So. 3d 407(Fla. 4th DCA 2012) .................................................................. iii, 8
Tripoli v State,
50 So. 3d 776 (Fla. 4th DCA 2010) .......................................................................3
Williams v. State,
621 So.2d 413 (Fla.1993).......................................................................................3
Rules
Fla. R. App. P. 9.210 ................................................................................................10
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POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING THE STATE’S MOTION TO ADMIT S’s
COLLATERAL CRIME EVIDENCE TO PROVE
PROPENSITY.
THE TESTIMONY OF S THAT
APPELLANT “GROPED” HER BREAST DURING A
GAME OF HIDE AND SEEK TAG SOME UNKNOWN
YEARS PRIOR TO THE CHARGED OFFENSE WAS
NOT PROVED TO BE AN ACT OF CHILD
MOLESTATION BY CLEAR AND CONVINCING
EVIDENCE, HAD NO RELEVANCY EXCEPT TO
SHOW PROPENSITY AND WAS HIGHLY
PREJUDICIAL.
The State’s answer brief restates the point on appeal and thereby omits to
specifically respond to appellant’s issue on the trial court’s improper application of
McLean v. State, 934 So. 2d 1248 (Fla 2006), allowing collateral crime evidence for
purposes of proving propensity. T-1325-1327, 1334-1335. The court’s conclusion
that S’s testimony “is relevant to whether or not the defendant commits lewd and
lascivious acts on [children]” T-1326, is the very definition of propensity and omits
the careful gatekeeping functions required by McLean. This statement of the court
also shows the court rejected relevancy as the proper evidentiary standard for
admissibility which the state must prove by clear and convincing evidence.
Nor does the state’s answer brief address appellant’s specific argument that
S’s testimony does not support a conclusion that any act of lewd molestation
occurred much less that it did so by clear and convincing evidence: S’s testimony of
a collateral act was short on details, inconsistent from what she first said in answer
to her mother’s query whether anyone had touched her inappropriately, she initially
told her mother that Jose touched her breast during a game of capture tag, like a
“swipe,” not a “grab.” Vol 1-T-153, which incident was not reported to the police,
when it occurred at some unknown years prior and was not sufficiently similar to the
charged offemse as to GT.
Appellant cited good and adequate case law on the proper application of
McLean, to which the state does not respond except to say, in essence this a child
molestation case, the standard’s relaxed. The state quotes other parts of the court’s
findings and does not respond to appellant’s citation and argument on the court’s
upfront considerations of propensity or the state’s position on propensity in
argument on the admissibility of S’s evidence in the lower court.T-1325-1327, 13341335. Nor does the state ever respond throughout its answer to the unfair prejudice
by the court’s injecting “propensity” as an issue in this case; the answer brief says
nothing about the judge’s specific interpretation that McLean allows “collateral
crimes or similar fact evidence to prove the propensity of the accused to commit the
charged act of child molestation.” T-1325. THIS COURT INTERPRETATION IS
NOT THE LAW. No where does proper analysis of the admissibility of collateral
acts evidence turn on the legal considerations advanced by the state in the lower
court and included in the court’s findings of why S’s testimony was admissible because McLean allows evidence of propensity. The correct principle of law is to
2
the contrary, that collateral crime evidence is not admissible to prove propensity.
This proper interpretation of McLean is well-known and was reiterated by this Court
in Tripoli v State, 50 So. 3d 776, 780 (Fla. 4th DCA 2010):
Conversely, evidence of the collateral acts of a defendant is not admissible if
its only role is to show the defendant’s bad character or his propensity to
commit the crime for which he is charged. Williams v. State, 621 So.2d 413,
414 (Fla.1993) (holding that evidence of other crimes, wrongs or acts is
admissible only “if it casts light on a material fact in issue other than the
defendant’s bad character or propensity.”)
The state’s answer did not carry its heavy burden to prove harmless error. Reversal
here is still required.
POINT II
THE TRIAL COURT ERRED REVERSIBLY BY
GIVING THE STATE’S AMENDED COLLATERAL
CRIME EVIDENCE INSTRUCTION THAT TOLD THE
JURY THEY COULD USE THE COLLATERAL
CRIME EVIDENCE AS PROOF OF THE
DEFENDANT’S PROPENSITY. THE DEFENDANT’S
OBJECTION
THAT
THE
NON-STANDARD
INSTRUCTION WAS NOT THE LAW, WAS
CONFUSING AND PREJUDICIAL SHOULD HAVE
BEEN SUSTAINED.
The answer brief acknowledges that the inclusion of “propensity” in the final
jury instruction on collateral crime evidence “should not have been there.” AB-21.
Appellee then advocates that the (erroneous) inclusion of this “single word” was
harmless. Propensity was more than a stray word in this jury instruction; propensity
was the concept at the core of the state’s case and underlay its theory of prosecution.
3
The inclusion of appellant’s propensity “to touch girls inappropriately” (as the state
called it) ran throughout the pre-trial and trial proceedings; propensity was the basis
the state urged S’s collateral act testimony was admissible and propensity was at the
foundation of the court’s finding on the admissibility of S’s testimony; T-13251327,1334-1335. The state’s prior revelation at the Williams rule hearing that it
would use S’s testimony to prove appellant’s propensity to commit acts of child
molestation figured large in the hearing on the state’s motion in limine to exclude
Dr. Ben Taylor’s testimony based on his scientific tests to identify child molestors
that appellant had no such propensity. At that hearing the state protested that the
defense should not be allowed to produce Dr. Taylor’s testimony that appellant had
no propensity for sexually deviant behavior. T-1375. But the court applied case law
inapplicable to this novel situation. Novel because the state had made propensity an
issue at appellant’s trial and none of the cases the state cited concerned proceedings
where “propensity” was an issue to be tried. The court ruled the appellant would not
be allowed to introduce Dr. Taylor’s testimony. Clearly, the state’s unusual legal
position that “propensity” could be tried as an additional issue (but appellant could
introduce no relevant evidence in defense of this issue) was well developed by the
time the proccedings approached the charge conference.
As the court considered the proper Williams rule instruction to be given in
final instructions to the jury, the state’s reliance on “propensity” needed no further
4
explication. The state was intent on this concept since the pretrial proceedings and
mentioned S’s testimony in its opening statement. T-1732.
The only difference
between the collateral act instruction given when S testified, the one the defense
counsel requested be given in the final instructions as the court had previously
instructed the jury, T-2095-2096, and what the state requested in the final
instructions was the prosecutor’s own special instruction used in other cases that
included the concept of propensity as a reason the jury could use the collateral crimes
evidence. T-2103. The concept of “propensity” was not just a word in the final
instructions that lay alone in hiding, never to be mentioned or argued in closing.
Propensity permeated the state’s presentation of its case. The state was relentless in
its pursuit of its propensity theory of prosecution and argued the concept throughout
closing, as it had mentioned it in opening. T-1732, 2122, 2164-2165, 2174.
Now there are many ways to argue the concept of propensity and that the state
did not use the word “propensity” in arguing its theory to the jury does not rectifiy
the prejudicial error in the state’s special jury instruction. The state argued to the
jury that because appellant played with children and once before touched S
inappropriately, he must have commited this charged act of lewd molestation on GT
because he was a child molestor. T-2164-2165:
Another corroborating factor, one we talked about in jury selection, the adult
who always hangs out with the kids. Now I’m not saying that every adult who
hangs out with the kids is going to inappropriately touch children, be a child
5
molester. Most probably aren’t. But sometimes things are as they appear to
be. This guy who always plays with the little girls, and who has now been
accused of twice groping a child of similar age in a similar way, both M’s
friends, it is what it appears to be.
T-2164-2165.
A trial court’s discretion in giving jury instructions is fairly narrow, Palmore
v. State, 838 So.2d 1222 (Fla. 1st DCA 2003) but the proseutor’s reason for the
special instruction that she wrote it and had used it before is not a narrow legal reason
to change the standard. This prosecutor may have labored under the mistaken belief
that if the Fourth District had not yet disapproved of her special instruction (and her
attendant misinterpretation that McLean allowed collateral crime evidence for the
purspose of proving propensity) then the instruction was okay. Or maybe she was
not thinking of any appellate consequences to her special written instructions at all.
Defense counsel’s objection- that the state’s special instruction was incorrect,
misleading and confusing to the jury- was the clearly provided specific legal
argument in the trial court and should have been sustained. The trial court’s failure
to do so resulted in prejudicial error that requires reversal.
POINT III
6
THE TRIAL COURT DENIED APPELLANT’S RIGHT
TO PRODUCE EVIDENCE IN HIS OWN DEFENSE
BY SUSTAINING THE STATE’S OBJECTIONS TO
1) DR BEN TAYLOR’S TESTIMONY THAT AN
EXTENSIVE BATTERY OF SEX OFFENDER
IDENTITY TESTS SHOWED APPELLANT LACKED
ANY PROPENSITY TO COMMIT CRIMES ON
CHILDREN; 2) FAMILIES AND FRIENDS TRUSTED
APPELLANT TO PLAY WITH THEIR CHILDREN
WHO HAD NEVER HARMED OR TOUCHED A
CHILD INAPPROPRIATELY AND 3) SELENA
LOPEZ’TESTIMONY THAT APPELLANT PLAYED
WITH HIS RELATIVES’ CHILDREN SO HIS NIECES
COULD INTERACT WITH A TRUSTED ADULT (AS
A THOUGHTFUL FAMILY CONTRIBUTION FROM
APPELLANT’S GROWING UP WITHOUT A
FATHER).
Argument on this issue is also addressed in the reply brief issue two.
Appellant relies on that argument in reply and also on his arguments in the initial
brief.
POINT IV
THE TRIAL COURT ERRED AS A MATTER OF LAW
IN IMPOSING SENTENCE ON THE MISTAKEN
BELIEF THAT THE LOWEST POSSIBLE MINIMUM
SENTENCE WAS A 25 YEAR MANDATORY
MINIMUM. APPELLANT IS ENTITLED TO A NEW
SENTENCING HEARING WHEN THE FLORIDA
SUPREME COURT SETTLES THE CONFLICT NOW
BEFORE THAT COURT, ADOPTING THE SECOND
DISTRICT’S MONTGOMERY V STATE, 36 So.3d 188
(Fla. 2d DCA 2010) DECISION ALLOWING FOR A
LESSER PENALTY FOR AN 800.04 CONVICITON
INSTEAD OF HIS COURT’S CONFLICING DECISION
7
IN ROCHESTER V. STATE, 95 So. 3d 407 (Fla. 4th DCA
2012)
At the time this reply brief is filed, June 2, 2014, the Florida Supreme Court
has not yet settled the conflict in the districts and issued an opinion in Rochester v
State, SC12-1932, reviewing Rochester v. State, 95 So. 3d 407 (Fla. 4th DCA 2012).
Since that court heard oral argument on October 7, 2013, which by now is 7 months
ago, appellant anticipates a decision sometime “soon.” Appellant requests this Court
delay a decision in his case until Rochester is finally decided as a new sentencing
proceeding in appellant’s case should be required when the Florda Supreme Court
rules that a 25 year minimum sentence is not required and the trial court has
discretion to impose a lesser sentence in this section 800.04 case. Appellant is
entitled to a fair sentencing where it is clearly understood by the parties and the court
that a lesser sentence than a 25 year mandatory minimum is not prohibited by law.
Reversal of a sentence is required when the court was unaware of the sentencing
options available and imposed an habitual offender sentence thought to be
mandatory, when it was really only permissive. Ellis v. State, 816 So. 2d 759 (Fla.
4th DCA 2002).
Appellant argues that exactly that sentencing error in Ellis
happened in his case, when the sentencing judge court did not realize he had
discretion to impose a lesser sentence and no mandatory minimum applied. This
sentencing argument should prevail when the Supreme Court clarifies the conflict in
8
the districts and then this Court should remand for a new sentencing hearing (if
appellant does not prevail on any of his first three points that require a new trial).
CONCLUSION
Based on the foregoing arguments and authorities cited, appellant requests
this Court to reverse his conviction due to the prejudicially improper collateral
crimes evidence, and the incorrect, misleading jury instruction on collateral crime
evidence in the final instructions to the jury. This Court should reverse for a new
and fair trial where appellant’s right to present exculpatory evidence in his defense
is not denied, or reverse for resentencing when the lawful minimum is established
by the Florida Supreme Court.
Respectfully submitted,
/s/__________________________________
MARGARET GOOD-EARNEST
GOOD EARNEST LAW, P.A.
Florida Bar No. 192356
P.O. Box 1161
Lake Worth, Florida 33460
(561) 533-0111
[email protected]
Counsel for Appellant
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been furnished
electronically to Georgina Jimenez-Orosa, Assistant Attorney General, 1515 North
Flagler Drive, 9th
Floor, West Palm Beach, Florida
33401
at
[email protected] this day of June 2, 2014.
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared in compliance with the
font standards required by Florida Fla. R. App. P. 9.210. The font is Times New
Roman, 14 point.
/s/__________________________________
MARGARET GOOD-EARNEST
GOOD EARNEST LAW, P.A.
Florida Bar No. 192356
P.O. Box 1161
Lake Worth, Florida 33460
(561) 533-0111
[email protected]
Counsel for Appellant
10