INITIAL BRIEF OF APPELLANT

Transcription

1 CASE.Y MARIE, ANTHONY, Petitioner, IN THE, DISTRICT COURT OF APPEAL FOR TFIE FIFTH DISTRICT STATE OF FLORIDA DCA NO.: 5Dll-2357 VS. STATE OF FLORIDA ResPondent, ON APPEAL FROM THE, CIRCUIT COI]RT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COLINTY INITIAL BRIEF OF APPELLANT J. CITENEY MASON, ESQ. Florida Bar No.: J. Cheney Mason, P.A. 390 North Orange Avenue Suite 2100 Orlando, Florida Telephon e: Facsimile : and LISABETH FRYER, ESQ. Florida Bar No.: North Orange Avenue Suite 2100 Orlando, Florida Telephon e: Facsimile :

2 TABLB OF CO,{TEI{TS Table of Contents. Table of Citations...l-ll v Preliminary Statement Statement of Case and Facts Summary of the Arguments Arguments Point One THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S VARIOUS MOTIONS AND OBJECTIONS TO THE ADMISSIBILITY OF DEFENDANT'S STATEMENTS TO LAW ENFORCEMENT, AS THOSE STATEMENTS WERE NOT MADE VOLLINTARILY AND SHOULD HAVE BEEN SUPPRESSED B. Argument on the Merits Point Two THE APPELLANT'S CONSTITUTIONAL DOUBLE JEOPAR-DY RIGHTS WERE VIOLATED WHEN SHE WAS CONVICTED OF FOUR SEPARATE COLTNTS OF PROVIDING FALSE INFORMATION TO A LAW ENFORCEMENT OFFICER BECAUSE EACH COINT STEMMED FROM TT{E SAME SINGLE OFFENSE WHERE THERE WAS NO BREAK IN THE TEMPORAL ASPECT OF THE CRIME A. Standard of Revrew. l8 B. Argument on the Merits

3 Point Three TI-{E LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S REQUEST TO REQUIRE A FINDING OF MATERIALITY IN FLORIDA STATUTE $ 837.0s5...2r A. Standard of Review B. ArgumentontheMerits Conclusion Certificate of Service Certificate of Compliance....24

4 TABLB OF CITATIOI{S Page Number U.S. Constitution U.S. Const. amend. V....lZ, 15, 1g Florida Constitution Fla. Const. art.i, $9. Cases Benjaminv. State,77 So. 3d7g1 (Fla. 4th DCA 2oll). 12, l8...1g Burke v. State,475 So. 2d252 (Fla. 5th DCA l9g5) Conner v. State,803 So. Zd 598,609 (Fla. 2001) Gonzales v. State,948 So. zdb92 (Fla. 5'h DCA 2007) Hammel v. State,934 So. 2d 634 (Fla.2d DCA 2006)..,...19 Hoag v. State,5l 1 so. zd 4al (Fla. 5th DCA 19g7) L.T. v. State,69 So. 3d 1014 (Fla. 3d DCA 20Lt) Miranda v. Arizona,, 384 U.S. 436 (1966)....13, 14, 17 Ramirez v. state,739 So. 2d 569 (Fla. l ggg)....13, 16, 77, State v. Ellis,722 So. 2d 824 (Fla. l " DCA 1997). 22 Statev. Deese,495 So. 2d286 (Fla.2d DCA 1986) iii

5 Williams v. State,757 So. 2d 597 (Fla. 5th DCA zo07) Florida Statutes Fla. Stat. $ ,21,22 iv

6 PRELIMTNARY STATEMENIT The letter "R" shall refer to the Record on Appeal page number with "T" representing any transcript page numbers from the trial. The Appellant will be referred as the Appellant.

7 STATBMENT OF THE CASE AND FACTS The Appellant, CASEY ANTHONY, was charged for the offenses of First Degree Murder (Capital), Aggravated Child Abuse, Aggravated Manslaughter of a Child, and four counts of Providing False Information to alaw Enforcement Officer During an Investigation by indictment on June 1 0,20i 0. Jury selection began on May 9,201 1 and the trial commenced on }liay 24,201,1. Pre-trial, defense counsel filed a Motion to Suppress Statements January 3,201 1(R ) and an Amended Motion to Suppress Statements on February 16,201 1 (R ). A hearing was held on the Motions March 2 through 7,2Ol 1. (R. 2057l-21026). During the hearing, evidence was presented that asserted that the Appellant was arrested, placed in handcuffs, and placed in the back of a patrol car by a law enforcement officer who stated that the reason for the arrest was possible child abuse. (R.20642). Conflicting evidence stated that that the Appellant was handcuffed for approximately five minutes. (R. 2A707-08). The Appellant was in the back of the patrol car for approximately thirty minutes to an hour. (R ). The arresting officer was instructed to remove the Appellant's handcuffs and told that Detective Melich wanted to speak with the Appellant. (R ). At no time was the Appellant informed of her Miranda rights. (R ). Subsequent to being handcuffed and placed in the cage the patrol car, law enforcement elicited the statements in question in Counts Four, Five, Six, and

8 Seven of the Indictment.(R ). The Lower Court entered an Order Denying Motion to Suppress Statements Made to Law Enforcement Officers on March 18, (R ). Defense counsel for the Appellant filed a Motion for Rehearing on Orders Denying Motions to Suppress on March 24,20 i I. (R. I47 54' 62). The Lower Court entered an Order Denying Motion for A Rehearing on Orders Denying Motions to Suppress on March 25,2011. (R ). At trial, both the defense and the State presented evidence. In relevant parl, the trial testimony is as follows: I. TRIAL TESTIMONY DEFENSE WITNESS: RYAN EBERLIN: Officer Ryan Eberlin is a member of the Orange County Sheriff s Office. (T. 1529). Officer Eberlin was dispatched to the Appellant's residence on July 15, 2008 in his capacity as a law enforcement officer and while there, he placed the Appellant in handcuffs. (T ). This occurred before the Appellant's written or oral statements. (T. 1544). Subsequently, he removed the handcufts from the Appellant at the instruction of Sergeant Reginald Hosey. (T. 1530). The Appellant was not Mirandized.

9 On cross-examination, the State sought to illicit the reason for placing the cuffs on the Appellant and, on defense objection, the following conversation was had: (T. rs32-33). Mr. Mason: That's a clear 403 violation. Ms. Drane-Burdick: Then you shouldn't have asked the question. The Court: The problem, Mr. Mason, is you asked the question. Mr. Mason: About handcuffing, not arresting. The Court: But you don't put handcuffs on folks unless you arrest them. Mr. Mason: You ruled exactly the contrary in my motion to suppress. STATE WITNESSES: CORPORAL RENDON FLETCHER: Corporal Fletcher, an employee of the Orange County Sheriff s Office, was the first individual to arrive at the Appellant's home just after 10:00 p.m. on July 14, 2008 (T. 574). Corporal Fletcher was dispatched to the residence as a result of a call from the Appellant's mother, who reporled a stolen vehicle and arrived at the residence in full uniform and a marked vehicle. (T ). Corporal Fletcher relayed that the Appellant, after questioning, stated that her daughter was missing, in the custody of a nanny, and that the Appellant was conducting her own search. (T. 579). Corporal Fletcher drove his patrol car and

10 Officer Acevedo drove a separate marked patrol car with the Appellant to the last stated address of the "nanny." (T ). OFFICER ADRIANA ACEVEDO: Officer Acevedo was second to arrive at the scene. (T. 596). Soon thereafter, Sargent Reginald Hosey arrived. (T ). At the direction of Sgt. Hosey, Officer Acevedo escorted the Appellant to the last stated location of the "nanny." (T. 597). On cross-examination, Officer Acevedo explained that she was at the Appellant's residence for two hours before escorting the Appellant to the location in the cage of her patrol car. (T. 602). LIEUTENANT REGINALD HOSEY: On cross-examination, then Sargent, now Lieutenant Hosey testified that there were three marked patrol cars at the residence and that the three law enforcement officers present were all uniformed and outfitted with guns and tasers. (T. 618). Additionally, after being escorted to the Sawgrass Apartments in the cage of Officer Acevedo's car, the Appellant was led back into her residence by fully uniformed, armed deputies (T ). The Appellant was taken into the home and kept at the residence by an unknown number of deputies until Deputy Melich arrived approximately two hours later. (T. 624). Sargent Hosey stated that he had no memory of instructing Officer Ryan Eberlin to remove handcuffs from the

11 Appellant. When asked "And you weren't going to let anybody leave, were you?" Lieutenant Hosey responded, "I can't say that I wouldn't have." (T. 625). DBTECTIVE YURI MELICH: Detective Melich arrived at the Appellant's residence between 3:00 and 4:00 in the morning on July 16, (T. 639). Law enforcement officers had been present in the Appellant's home for over five hours atthat point. The State moved a hand written statement into evidence and the defense renewed its objections first raised in the pretrial motions and hearing. (T. 643). Noting all previous objections, the lower court overruled the objection. (T. 643). The State also moved a recorded statement by the Appellant into evidence. The defense renewed its objections first raised in the pretrial motions and hearing. (T. 647). Noting all previous objections, the lower court overruled the objection. (T. 647). The recorded statement by the Appellant stated that she worked at Universal Studios (7. 652), Zenaida Femandez-Gonzales was Caylee Anthony's babysitter (T. 650), and that the Appellant informed Jeffery Hopkins and Juliette Lewis of the disappearance of her child (T ). This statement was twenty minutes long and occurred at 4: I 1am. On cross-examination, Detective Melich stated that the Appellant had not been Mirandizedbefore being questioned or adopting her previously written statement. (T ). 6

12 LEONARD TURTORA: Mr. Tuftora is the assistant manager of loss prevention at Universal Studios in Orlando. (T. 727). Mr. Turtora assisted Detective Melich in his investigation in this matter as it related to the Appellant's statements. (T. 728). On cross-examination, Mr. Turtora verified that at the time Detective Melich had the Appellant transported to Universal Studios by two law enforcement officers, the Detective had already been informed that she was not an employee of Universal. (r.736). DETECTIVE YURI MELICH: Detective Melich took the stand once again and the State approached the clerk in order to enter a DVD of the interrogation of the Appellant that occurred at Universal Studios. (T ). The defense renewed the previous motion to suppress and asserted additionally that Mr. Turtora was acting as an agent of the State when he assisted in veriffing information and escorted the Appellant and law enforcement into the facility and into a small room used for the inter:rogation. (T ). The lower cout't overruled the objection. (T. 747). Detective Melich testified that he dropped the Appellant off at her residence at approximately 6:00 in the morning and ordered two detectives to pick her up and transport her to Universal Studios at 9:30 a.m. (T. 748). The first officer arived at the Appellant's residence at approximately 10:00 the night before. (T.

13 574). When asked whether the Appellant agreed to come to Universal Studios, Detective Melich replied "To the best of my recollection, she did. I don't recall her saying about, no, I don't want to go or I refuse to go. Nothing like that'" (T ' 752' 53). The Appellant was escorted to Universal Studios by Detectives Wells and Appling. (T. 753). Both detectives were dressed in "shirt, tie, badge, gun'" (T' 753). After the Appellant confessed what Detective Melich already knew (that she was not employed at Universal Studios, No one named Jeffery Hopkins or Juliette Lewis was employed at Universal Studios, there was no Zenaida Fernandez- Gonzales at the stated address or ever employed at Universal Studios), he stated,,...mr. Tutora found a small room in that same building that we could use...and he allowed us to use it so we can further question Ms. Anthony'" (T' 759)' The State then published the DVD recording of the Appellant's interrogation. (T ). The appellant was not Mirandizedbefotethe interrogation. During the interrogation, Detective Melich, Sgt. Wells, and Detective Appling confronted the Appellant with evidence against her and interrogated her as to her knowledge of the disappearance of her daughter. (T ). On cross-examination, Detective Melich stated, "I confronted her several times in the interview..." (T. 857). At the close of the State's case on June 15,2011, defense counsel moved for a judgment of acquittal based on, in pertinent paft, on the constitutional

14 deficiency in Fla. Stat because there is no requirement of materiality as is the standard in every other similar type statute (perjury, false information to a law enforcement officer) and the lack of the voluntariness of the Appellant's statements in light of the custodial interrogation and lack of necessary Miranda warning. (T ). The lower courl denied the motion without addressing the issues raised as to Counts four, five, six, and seven. (T ). During the charge conference on July 3, 2AIl, defense counsel objected to the standard jury instructions in this matter as lacking in a materiality component. (T ; ). The lower got ovemuled the objection. (T.t947-48; ; ). On July 5, 201 1, the Appellant was acquitted on the charges of First Degree Murder, Aggravated Child Abuse, and Aggravated Manslaughter of a Child. (T ). The jury returned a verdict of guilty on the four counts of Lying to a Law Enforcement Officer During an Investigation. (T ). Before sentencing, defense counsel filed a Motion to Vacate/Set Aside Based on Double Jeopardy and a hearing was held (R ).The lower coutl denied the motion and the Appellant was sentenced to one year in the Orange County Jail to run consecutive for each count with credit for 1043 days time served, a $1, fine for each of the four convictions, court costs, cost of prosecution, and cost of 9

15 investigation. (R ). The Appellant filed her Notice of Appeal on July 15, (R. 1999r-92). SUMMARY OF THE ARGUMENTS There are three points on appeal. First, the lower court erred in denying the Appetlant's motion to suppress her statements to Detective Melich. The record establishes that the Appellant was placed under arrest, never Mirandized, and subsequently interrogated. Either the statements occurred at the Appellant's residence or Universal Studios. At both locations, the Appellant was in custody. At her residence, the Appellant was unhandcuffed and questioned to purposely avoid informing her of her Miranda rights. At Universal Studios, the Appellant was in custody, placed in a small room for questioning by three members of law enforcement, confronted with evidence against her for an extended period of time, and never informed of her rights under Miranda. In either scenario, the Appellant's statements were involuntary and, therefore, the lower coutl erred in denying the Appellant's motion to suppress. Second, the lower court erred in denying the Appellant's motion to vacate/set aside sentence based on double jeopardy. All the statements in the indictment arose out of the same occurrence; the interrogation by Detective Yuri Melich. Because there was no temporal break in the Appellants statements which would have allowed the abitity to form new intent, the lower court erred in 10

16 sentencing the Appellant for each statement. As such, the Appellant must be resentenced for one criminal act only. Third, Florida Statute$ , without the element of materiality, is unconstitutional. As a preliminary issue, there are no published opinions addressing Florida Statute $ However, any interpretation of the statute which does not require materiality is void for vagueness. Because the lower court denied the defense's request to include materiality as an element in the statute, the Appellant should be awarded a new trial as to this matter. POINT ONE I. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTION TO SIPPRESS STATEMENTS TO LAW ENFORCEME,NT OFFICERS BECAUSE THE APPELLANT WAS ARRESTED AND IN CUSTODY, BUT NEVER APPzuSED OF FMR MIRAIVDA RIGHTS BEFORE BEING SUBJE,CT TO INTERROGATION A. Standard of Review The standard of review in evaluating a motion to suppress is a two-part process. Appellate courts "should... accord a presumption of correctness to the trial courl's rulings on motions to suppress with regard to the trial courl's determination of historical facts, but appellate courls must independently review mixed questions of law and fact that ultimately determine constitutional issues l1

17 arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitutiofi." Conner v. State, 803 So. 2d 598, 608 (Fla. 2001). Additionally, "[i]n order for a court to conclude that a suspect was ln custody, it must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect wouid not feel free to leave or to terminate the encounter with police. Id. at 605 (citing Voorhees v. state,699 So.2d 602,608 (Fla.1997); Florida v. Bostick, 501 U.S. 429,439, lll S.Ct. 2382, I 15 L.Ed.zd 389 (1991)). B. Argument on the Merits lt is undisputed that the Appellant was handcuffed and placed in the cage of a marked police vehicle by a law enforcement officer before being questioned by Detective Yuri Melich. (R ).It is also undisputed that, at all times after the arrival of law enforcement at the Appellant's residence, the Appellant was never less than ten to twelve feet frorn an armed, uniformed law enforcement officer. (R ). Additionaliy, it is undisputed that the Appellant was escorled to Universal Studios by law enforcement officers, placed in a small room, and confronted with evidence against her. (R ). After an extensive hearing on the T2

18 suppression issue, the lower court entered an Order Denying Motion to Suppress Statements Made to Law Enforcement officers. (R A7). Custodial interrogation requires that law enforcement advise an individual of their rights under Miranda v. Arizona,384 U.S. 436 (1966). As stated in the lower court's Order, in determining whether an individual is "in custody" for Miranda pufposes, "[t]he proper inquiry is not the unarticulated plan of the police but rather how a reasonable person in the suspect's position would perceive the situation." (citing Ramirezv. State,739 So. 2d568,573 (Fla. 1999). Ramirez articulated a four-part test to determine whether a reasonable individual in the suspects shoes would consider herself free to leave under the circumstances: 1) the manner in which the suspect is summoned for questioning; 2) the purpose, place, and manner of the interrogation; 3) the extent to which the suspect is confronted with evidence of guilt; and 4) whether the suspect is informed that they are free to end the encounter and leave. Id. There were two episodes of interrogation at issue in the present case, however, the Appellant was subject to continual custody, as the Appellant was only outside the presence of law enforcement for a short window of time and was at all times the subject of an investigation. First, the Appellant was interrogated by Detective Melich at her residence. Second, the Appellant was interrogated by i3

19 Detective Melich at Universal Studios in a 10X10 room with the assistance of two additional law enforcement officers. In the first instance, Officer Eberlin handcuffed the Appellant and placed her in the cage of the car for the stated crime of "fraudulent use of a credit card and stolen credit card," The Appellant was under arrest. (R ). The Appellant was not, thereafter "unarrested." (See Williams v. State,757 So. 2d 597 (Fla. 5th DCA 2007) finding that one cannot be unarrested for purposes of speedy trial and that one may be in custody for purpo ses of Miranda even though they not be formally under arrest.) The arresting officer was directed unhandcuff the Appellant and to conduct a missing person investigation. The Appellant's subsequent written statement was made with the assistance and in the presence of the arresting officer and without proper Miranda warnings. (R ). Under Williams, one cannot be "unarrested." Id. Although Williarzls address an arest in the context of speedy trial, the principle applies with full force in the context of custody for Miranda purposes, as the speedy trial standard is more stringent than that of custodial interrogation. 1d. When one is removed from their home, placed in handcuffs in response to a complaint, and placed in the cage of a police vehicle an arrest has been effectuated.. Under Williams, an arrest is effectuated when: t4

20 (1) A pulpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, or an intention or purpose then and there to effect an arrest; and (a) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Id. at 599 (quotrngmeltonv. State, 75 So. 2d291,294 (Fla. 1954)). In the present case, the anesting officer had actual authority to effect the arrest, as he was a deputy with the Orange County Sheriff s office; the Appellant was actually seized, handcuffed, removed from her home, and placed in a marked patrol car; Deputy Eberlin stated his purpose for arresting the Appellant was fraudulent credit card charges; and the officer's actions in handcuffing and removing the Appellant from her home manifested a clear intention of arest. Under Williams,the Appellant was arrested. Further, at all times after the Appellant was arrested, up to and including the interrogation by Detective Melich, she remained in the presence of law enforcement. (R ). "Aresting a Defendant, only to unarrest them while continuing to interrogate and control the boundaries of that individual is clearly an attempt to skirt alerting the individual of their Fifth Amendment rights." (R ). (It should be noted that during this episode the Appellant did not make any statement related to Count Seven of the Indictment). Because the Appellant 15

21 was arrested, was at all times in the continued presence of law enforcement, and at no time would a reasonable person feel free to leave, the lower court erred in denying the defense motion to suppress her statements arising from Detective Melich' s first interrogation. The Appellant was further interogated at Universal Studios in a 10X10 room, twenty miles from her home, by three armed law enforcement officers, and confronted with evidence against her. The lower courl erred in determining that the statements from this episode were not subject to suppression. The Appellant was picked from her home by two law enforcement officers and transported to Universal Studios. (T. 748). At the time the Appellant was transported, Detective Melich had already determined that her statements were not truthful. (T.759). However, the Appellant was taken into a small office at Universal Studios and, behind closed doors; she was confronted with evidence against her. (T ). The lower court concedes that the "it is true that the Defendant was confronted regarding her lies to the detectives, she was not accused of a serious crime, such as murder." (R ). Those statements that were the basis of the confrontation by law enforcement are now the basis of the Appellant's conviction and present appeal. The third parl of the Ramirez test is not whether the Appellant was only confronted evidence with the most serious crimes, but i.vhether she was confronted with evidence of guilt. The lower court concedes that she was. t6

22 In applying Ramirez, the Appellant was summoned for questioning by transpoft with law enforcement officers twenty miles away from home; the purpose of the interrogation was to confront the Appellant with evidence of her lies; during the entire span of the encounter the Appellant was confronted with evidence of her guilt; and at no time was the Appellant informed she was free to end the encounter. Under Ramirez's four-part test, the Appellant was in custody and subject to custodial interrogation for purposes of Miranda. Ramirez,739 So. 2d at 573. Further, the lower court erroneously analyzed the issue of "custodial interrogation" from the perspective of law enforcement rather than the perspective of a reasonable person in the Appellant's position. In address defense counsel's assertion that the interrogating law enforcement officers angrily confronted the Appellant with evidence of guilt against her, the lower courl stated "...while it is true that the detectives seemed to become frustrated with the Defendant for leading them on a 'wild goose chase,'...[i]t is clear that this frustration emanated from the detectives' desire to find Caylee and over the wasted time investigating bad information given to them by the Defendant." (R ). Speculation as to the detectives' motivation for raising their voices when confronting the Appellant is irrelevant. Rather, the intimidating tones weigh in favor of a custodial interrogation. Furlher, any statements made to Detective Melich during the Universal Studios interrogation cannot be said to impede the investigation, as the 1l

23 Detective was aware of the falsity of the statements. (See L.T. v. State,69 So. 3d 1014 (Fla. 3d DCA 20ll) holding that the defendant could not be charged with giving false information to a law enforcement officer because the officer knew of the falsity of the statement almost immediately upon encountering him). Based on the foregoing, the lower court erred in denying the defense motion to suppress statements to law enforcement officers. Further, any ruling that upholds law enforcement's actions in this matter (arresting a suspect and then "unarresting" them for the sole purpose of interrogating them) creates a blueprint for law enforcement to engage in a custodial interrogation while skirting the Miranda requirement. POINT TWO II. THE APPELLANT'S CONSTITUTIONAL DOUBLE, JEOPARDY RIGHTS WERE VIOLATED WHEN SHE WAS CONVICTED OF FOUR SEPARATE COUNTS OF PROVIDING FALSE INFORMATION TO A LAW ENFORCEMENT OFFICER BECAUSE EACH COLINT STEMMED FROM THE SAME SINGLE OFFE,NSE WHERE, THERE WAS NO BRE,AK IN THE TEMPORAL ASPECT OF THE CRIME A. Standard of Review "The Fifth Amendment 'protects against multiple punishments for the same offense. Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State,825 So. zd 362,365 $b.2a02):' Benjamin v. State,, 77 So.3d 7g 1,793 (Fla. 4th DCA 201l). 18

24 B. Argument on the Merits "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. Additionally, the Florida Constitution guarantees no person shall "be twice put in jeopardy for the same offense." Fla. Const. art.i, $9. This constitutional right has been interpreted to include the principle that individuals are given "protection from multiple convictions and punishments for the same offense arising out of a single episode." Hammel v. State,934 So. 2d 634,635 (Fla. 2d DCA 2006).In the present case, defense counsel asserted that the Appellant's multiple convictions should be vacated or set aside and the Appellant should be sentenced to count under Fla. Stat. $ (R ; ). The lower court denied the motion and the Appellant was sentenced on all four counts. In Hammel,the defendant was charged with multiple counts of using a computer to seduce a child to commit illegal acls. Id. at 635. Mr. Hammel argued his conversations with the police officer were all part of one ongoing criminal act with one single intent. The court looked at the "spatial and temporal aspects of the crimes, a coutt can asceftain 'whether the defendant had time to pause, reflect, and form a new criminal intent between the occurences. "' Id. Two counls in Hammel were based on a single conversation that spanned a two day period. Id. As a result, the court concluded the conversation was not considered to be a separate event 19

25 constituting new criminal intent because there was no "temporol break in the conversation or a change in circumstsnces to wsrrsnt seporate charges." Id. at 636 (emphasis added). In the present case, the Indictment charges four counts of lying to a law enforcement officer during a missing person investigation on June 16,2008. The interrogation which led to the charges occumed during a continuous interrogation. Neither the necessary temporal break, nor a change in circumstance occurred which would justify separate charges. As such, the lower courl erred in sentencing the Appellant on all four statements. Further, the court in Burke v. State,475 So. 2d252 (Fla. 5th DCA 1985) came to a similar conclusion in holding that a defendant could not be charged with three separate counts of uttering when the charges arose from an event that happened at one time and place and under the same circumstances. Id. at 253. In Hoag v. State,5l 1 So. 2d 401 (Fla. 5'h DCA lg}7),this Courl found that double jeopardy was violated when Hoag was charged with five counts of leaving the scene of an accident with injuries. This Court reasoned that even though Hoag's actions resulted in injuries of four separate individuals and the death of a fifth, his accident constituted one single offense, thus making him eligible for only one count of leaving a scene of an accident with injuries. Id. at

26 In the present case, the lower court erred in focusing its analysis on the consequences of each false statement, as opposed to circumstances under which the false statements were given. (R. at ). The Appellant provided all the statements to the officer during the same interview and never had time to pause, reflect and form new criminal intent between occurrences. (R. at 20554). Based on the foregoing, the Appellant respectfully request that this Court vacate counts five, six, and seven of the indictment and resentence the Appellant in conformity with both the federal and state constitutions with regard to double jeopardy. POINT THREE III. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENIYING DEFENDANT'S REQUEST TO REQUIRE A FINDING OF MATERIALITY rn FLORTDA STATUTE $ A. Standard of Review "A trial courl decision on the constitutionality of a state statute presents an issue of law that is reviewed by the de novo standard of review... [t]here is a strong presumption in the law that a state statute is constitutionally valid. Gonzales v. State,948 So. 2d 892 (Fla. 5th DCA 2007) (internal citations omitted). B. Argument on the Merits Currently, there are no published opinions regarding Florida Statute $ However, this statute is located under perjury in Florida Statute Chapter 837, the 2t

27 perjury requirement of materiality should be applied to this statute. Florida Statutes Perjury Chapter defines a material matter to mean, "any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law." Fla. Stat. $ (3) ( 2010). However, State v. Ellis,722 So. 2d824 (Fla. 1" DCA 1997) recognized that Florida cases acknowledge materiality is an element of perjury and, as such the issue of materiality should be submitted to the jury. Likewise, the statute in question requires an element of materiality or the statute is rendered "so vague that it fails to give adequate notice of what conduct is prohibited and it invites arbitrary and discriminatory enforcement." State v. Deese, 495 So. 2d286 (Fla. 2d DCA 1986). In the present case, defense counsel objected to the standard jury instructions in this matter as lacking in a materiality component. (T ; ; ). The lower got ovemrled the objection. (T ; ). However, because the lack of materiality would create an unconstitutionally vague statute and the issue was never submitted to the j*ry, the Appellant respectfully requests a new trial on this matter. CONCLUSION 22

28 The lower court erred in denying the Appellant's Motion to Suppress. The Appellant requests that this Honorable Court reverse the lower court's decision on this matter. Additionally, the lower court erred in denying the Appellant's Motion to Vacate/Set Aside Convictions Based on Double Jeopardy. The Appellant requests that this Court vacate/set aside her convictions on charges five, six and seven as violative of double jeopardy. Finally, the lower court erred in denying the defense request that materiality be a required element of Florida Statute $ Based on this error, the Appellant respectfully requests a new trial. Florida Bar No.: J. Cheney Mason, P.A. 390 North Orange Avenue Suite 2100 Orlando, Florida Telephon e: Facsimile : and LISABETH FRYER Florida Bar No.: North Orange Avenue Suite 2100 Orlando, Florida Telephon e: Facsimile : Attorneys for the Appellant 23

29 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this petition was furnished to the Office of the Attorney General, 44 Seabreeze Boulevard, Suite 50, Daytona Beach, Florida 32118, this iday of June, 201 CERTIFICATE OF COMPLIAI\CE I HEREBY CERTIFY that this petition complies with the font requirements of Rule 9.100(/) of the Florida Rules of Appellate procedu 24