DANIEL DUFFY, STATE OF FLORIDA,

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CASE NO.4D13-3861 DANIEL DUFFY, Appellant, RECEIVED, 4/6/2015 9:51 PM, Clerk, Fourth District Court of Appeal vs. STATE OF FLORIDA, Appellee. ***************************************************************** ON APPEAL FROM THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA CRIMINAL DIVISION ***************************************************************** ANSWER BRIEF OF APPELLEE PAMELA JO BONDI Attorney General Tallahassee, Florida MITCHELL A. EGBER Assistant Attorney General Florida Bar No.35619 1515 North Flagler Drive Ninth Floor West Palm Beach, FL. 33401-2299 Telephone: (561)837-5000 (561)837-5099 fax Counsel for Appellee

TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii-iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT...4-15 POINT I POINT II THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE S MOTION TO CONSOLIDATE THE CHARGES (RESTATED)...4-9 THE TRIAL COURT DID NOT ERR ALLOWING THE STATE TO IN ALLOWING THE STATE TO PRESENT EVIDENCE OF APPELLANT S FEDERAL MORTGAGE AND IDENTITY THEFT CHARGES; THIS ISSUE IS NOT PRESERVED FOR APPELLATE REVIEW (RESTATED)...10-13 POINT III THE TRIAL COURT DID NOT ERR DENYING APPELLANT S MOTION TO DISMISS THE WITNESS TAMPERING CHARGE (RESTATED)...14-15 Conclusion...16 Certificate of Service...17 Certificate of Font Size...17 i

TABLE OF AUTHORITIES CASES STATE CASES Page Brown v. State, 424 So.2d 950(Fla. 1 st DCA 1983)....... 5 Crossley v. State, 596 So.2d 447 (Fla.1992).......... 4,6 Festa v. State, 927 so. 2d 1049 (Fla. 4 th DCA 2006).......14 Fields v. State, 743 So. 2d 92 (Fla. 5 th DCA 1999)..... 15 Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)........7,8,9 Franklin v. State, 719 So.2d 938( Fla. 1st DCA 1998).... 15 Gray v. State, 873 So.2d 374 (Fla. 2d DCA 2004).........11 Griffin v. State, 639 So.2d 966 (Fla.1994)...........11 Rodriguez v. State, 609 So.2d 493 (Fla.1992)..........12 Simpson v. State, 33 So.3d 776 (Fla. 4th DCA 2010)...... 14 State v. Gibson, 682 So. 2d 545 (Fla. 1996)..........14 State v. Rambaran, 975 So.2d 519(Fla. 3rd DCA 2008)..... 11 Tumulty v. State, 489 So. 2d 150 (Fla. 4th DCA 1986)....... 10 Steinhorst v. State, 412 So.2d 332(Fla.1982)........ 12 Sule v. State, 968 So.2d 99 (Fla. 4 th DCA 2007)......... 6 Waterhouse v. State, 429 So. 2d 301(Fla. 1983)....... 10 Williams v. State, 110 So. 2d 654 (Fla. 1959)......... 10 Williams v. State,600 So.2d 540 (Fla. 1 st DCA (1992)...... 5 FLORIDA STATUTES 90.402, Fla. Stat. (2012).................9, 10 ii

FLORIDA RULES OF PROCEDURE Fla. R. Crim. P. 3.150 (a)................... 8 Fla. R. Crim. P. 3.151(b)................... 5 Fla. R. Crim. P. 3.151(c)...................14 iii

PRELIMINARY STATEMENT Appellant was the Defendant and Appellee was the Prosecution in the Criminal Division of the Circuit Court of the Nineteenth Judicial Circuit, in and for Indian River County, Florida. In this brief, the parties shall be referred to as they appear before this Honorable Court of Appeal except that Appellee may also be referred as the State or prosecution. In this brief, the symbol "R" will be used to denote the record on appeal; "T" will be used to denote the transcript of the trial proceedings below. 1

STATEMENT OF THE CASE AND FACTS The State accepts Appellant s statement of the case and facts to the extent that it represents an accurate non-argumentative recitation of the procedural history and facts of this case, subject to the additions, corrections, clarifications and or modifications contained in the body of this brief. 2

SUMMARY OF THE ARGUMENT POINT I The trial court properly consolidated the witness tampering charge. The state filed a motion to consolidate over a year prior to Appellant s re-trial on the homicide charge. POINT II This issue is unpreserved for appellate review. To the contrary, Appellant conducted extensive cross-examination of the witness regarding the federal indictment. POINT III The trial court did not err. Appellant s first trial ended in a mistrial. There was no conviction overturned on appeal or acquittal in his first trial. 3

ARGUMENT POINT I THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE S MOTION TO CONSOLIDATE THE CHARGES (RESTATED) After a mistrial was declared on February 22, 2012, On March 1, 2012 the state formally charged witness tampering counts by information in Case No. 312012CF0002260A and sought to consolidate those charges with the homicide indictment in Case No. 312010CF001720A (R 736-737,739,). Appellant responded objecting to the motion (R 744-755). On May 4, 2012 the the trial court granted the motion to consolidate (R 806-808). Thereafter, Appellant filed a motion to dismiss all counts (R 813-815). The trial court denied the motion to dismiss on June 14 th 2012 (R 825). Appellant suggests that the state waived the opportunity under Rule 3.151 (b) by not timely filing charges of witness tampering against Appellant as this evidence was known by the state at the first trial. In fact, the first trial ended in a hung jury. The standard of review of for consolidation of charges for trial is abuse of discretion. Crossley v. State, 596 So.2d 447, 450 (Fla. 1992). 4

The state submits that prior to the new trial the state timely filed the consolidated charges. Appellant has offered no case law for authority that the state's filing was untimely. part that Florida Rule of Criminal Procedure 3.151(b) states in relevant [t]wo or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation. If the requirement in Rule 3.151(b), Fla.R.Crim.P., that a motion for consolidation must be timely made means anything, it must require that such a motion be made more than two days before trial. Brown v. State, 424 So.2d 950, 954 (Fla. 1 st DCA 1983). See Williams v. State,600 So.2d 540 (Fla. 1 st DCA (1992) ( it seems patent that the two-day period between consolidation and trial prejudiced appellants by denying them their due process rights to have a reasonable opportunity to prepare for trial ). The state filed it s motion to consolidate on March 1, 2012. Appellant proceeded to trial during the month of July, 2013. Over a year had passed since the state filed it s motion and trial court granted same. Respondent submits that the motion was timely filed. Before permitting charges of separate crimes to be tried 5

together, the court must be careful that there is a meaningful relationship between the charges. Crossley, 596 So.2d at 450. The danger of improper consolidation lies in the fact that evidence relating to one crime may have the effect of bolstering the proof of the other. Id. In Sule v. State, 968 So.2d 99 (Fla. 4 th DCA 2007) the trial court did not err not granting severance of charges. As the court held: Similarly, the murder of Domato and solicitation to murder Heredia and the related charges were connected in the episodic sense. The murder of Domato resulted in the plot to burglarize and kill Heredia. Evidence of the Domato murder would be admissible in the trial of the solicitation. Likewise, evidence of the solicitation to murder Heredia and pin the blame for the Domato murder on him would be admissible in the Domato murder trial. See, e.g., Heath v. State, 648 So.2d 660, 664 (Fla.1994) ( Evidence that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post facto indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions. ); Jenkins v. State, 697 So.2d 228, 229 (Fla. 4th DCA 1997) ( a defendant's direct threat against a witness is relevant and may be admitted into evidence because it could be indicative of the defendant's guilt of the underlying offense ). The trial court did not err in denying the motion for severance. Sule, 968 So. 2d at 104. Appellant s attempts to distinguish Sule in light of the fact 6

that Appellant was not physically present at the time of the homicide or was the actual shooter and references to Brian Smith s ( Smith ) testimony that may be inconsistent in terms of the date of his meeting with Appellant are not relevant. Appellant s attempt to tamper with witnesses to prevent his prosecution is foremost and, like in Sule, and was clearly connected in an episodic sense. In Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992) the defendant was charged with first-degree murder and other counts. The remainder of the offenses were charged in two separate informations. All the offenses were consolidated for trial. The defendant filed a motion for severance of offenses which alleged that no connection existed between the Ramsey murder and the other offenses charged. As the Court noted: Through proffer, the State maintained that it would show that two days after the murder of Kevin Ramsey, Hunt was approached by Fotopoulos and recruited to assist him in a plan to murder his wife. According to the proffer, in order to obtain Hunt's cooperation, Fotopoulos used physical intimidation and the threat of disclosure of the videotape of the murder to coerce Hunt into cooperating. The motion was denied. A renewed motion for severance was later filed alleging that because Deidre Hunt refused to cooperate with the State, the State would be unable to introduce evidence to support its earlier proffer. The State then made an additional proffer based on the anticipated testimony of Teja James, one of the unsuccessful assassins and Lori Henderson, 7

Id., at 788. Hunt's best friend. In the proffer the State contended that Hunt killed Ramsey in order to be inducted into a secret hunter/killer club and thereby qualify herself to be involved in the later murder of Lisa Fotopoulos. The State also contended that the videotape of the earlier murder was used to coerce Teja James into participating in the later efforts to murder Lisa. Based on this proffer, the renewed motion was denied. An amended motion for severance also was denied. The Florida Supreme Court noted the similarity between Fla. R. Crim. P. 3.150(a) regarding severance and Fla. R. Crim. P. 3.151 (b): Pursuant to Florida Rule of Criminal Procedure 3.150(a) Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses... are based on the same act or transaction or on two or more connected acts or transactions. (Emphasis added.) Similarly, [t]wo or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion... Fla.R.Crim.P. 3.151(b). Offenses are related for purposes of rule 3.151(b) if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions. Fla.R.Crim.P. 3.151(a). Fotopoulos, 608 So. 2d at 789. held: In upholding the trial judge s denial of severance the Court 8

Based on the State's proffer, severance was not required under rule 3.152(a)(1) because the offenses were clearly connected in an episodic sense. Moreover, on this record, there was no showing that severance of the properly joined offenses was necessary to promote a fair determination of Fotopoulos' guilt or innocence. Rule 3.152(a)(2); Johnson, 438 So.2d at 778. Even if there had been separate trials, evidence of each offense would have been admissible at the trial of the other to show common scheme and motive, as well as the entire context out of which the criminal action occurred. See Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); Bundy v. State, 455 So.2d at 345; Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984). Fotopoulos, 608 So. 2d at 790 (emphasis added). Appellant further argues that filing and information and consolidating the witness tampering charge was harmful to him as it. However, as he states repeatedly, the testimony of Travis Gordon (upon which the charge is based) as to Appellant s attempts to tamper with witnesses was evidence in the first trial, which resulted in a mistrial due to a hung jury. It is difficult to discern, if the testimony was the same in the first trial pointing to Appellant s guilt, how he was prejudiced in the second trial by the witness tampering count when the testimony was indistinguishable, as he acknowledges. 9

POINT II THE TRIAL COURT DID NOT ERR ALLOWING THE STATE TO IN ALLOWING THE STATE TO PRESENT EVIDENCE OF APPELLANT S FEDERAL MORTGAGE AND IDENTITY THEFT CHARGES; THIS ISSUE IS NOT PRESERVED FOR APPELLATE REVIEW (RESTATED) Appellant contends the trial court erred in allowing the state to present evidence of appellant s federal mortgage and identity theft charges. However, there was no objection interposed and Appellant cross-examined the witness extensively as regards this issue (T 1723-1731), infra. Appellee agrees with the standard of review enunciated by Appellant (IB 40). Evidence that is relevant to illuminate the entire context of a defendant's criminal context is admissible. See Waterhouse v. State, 429 So. 2d 301, 306 (Fla. 1983). Context evidence may be relevant if it is "inextricably intertwined" or because it is needed in order to present an orderly, intelligible case. Tumulty v. State, 489 So. 2d 150 (Fla. 4th DCA 1986). Evidence of uncharged crimes that are inseparable from the charged crime or evidence that is inextricably intertwined with the crime charged is not Williams 1 rule evidence, and is instead admissible because it is a relevant, inseparable part of the act at issue and necessary to adequately 1 Williams v. State, 110 So.2d 654 (Fla. 1959) 10

describe the deed. 90.402, Fla. Stat. (2012); Smith v. State, 126 So. 3d 1038, 1045-46 (Fla. 2013). In Griffin v. State, 639 So.2d 966, 968 (Fla.1994) the Florida Supreme Court explained that "evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged" is admissible as "'a relevant and inseparable part of the act which is in issue' " (quoting Charles W. Ehrhardt, Florida Evidence 404.17 (1993 ed.). Such evidence is admissible under section 90.402 because it is a relevant and inseparable part of the act that is in issue and it is necessary to admit the evidence to adequately describe the act. Id. at 968; Gray v. State, 873 So.2d 374, 377 (Fla. 2d DCA 2004). Evidence is inextricably intertwined with a crime "if it is necessary to: (1) establish the entire context out of which the charged crimes arose, (citations omitted); (2) provide an intelligent account of the crimes charged, (citations omitted); or (3) adequately describe the events leading up to the crimes. See State v. Rambaran, 975 So.2d 519, 524 (Fla. 3rd DCA 2008). At the outset, the state strongly contends that this issue has not been preserved for appeal as no objection was interposed below to Sergeant Brian Neal s ( Neal ) testimony. 2 Accordingly, as an 2 In his initial brief on argument on this issue, Appellant does not cite to a specific instance of preservation in this regard nor where the alleged error by the trial court took place. 11

issue on appeal, this has been waived. In order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." Steinhorst v. State, 412 So.2d 332, 338(Fla.1982); accord Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992) (stating that "the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal"). Not only was an objection not interposed to Neal s testimony but to the contrary, it was Appellant who brought out that he had been indicted by the federal government (T 1730-31). The federal government case was inextricably intertwined with this case and was relevant as to motive and put the subsequent homicide and events leading up to it in context. Barbara Galea, who was the mother of two children John Torres ( Torres ), the victim, fathered, testified that when Appellant was released on band he told her that he Johnny had turned him in and that he was going to pay for this and that he was going to take of him (T 1741, 1742). Neal testified that Torres had come to him with incriminating information about Appellant(T 1721-1722). Finally, if found preserved, any error is harmless. Several witnesses testified how Appellant told them he wanted Torres, his However, the state assumes that this comes from pages 1717-1732 of Sergeant Brian Neal s testimony referred to by Appellant in his statement of facts (IB 9-10). 12

father in law, dead (T 1754-1759,1777-1782). Other witnesses testified that Appellant was angry at Torres, calling him an informant (T 1804-1806, 2822). Appellant met with Smith and others(t 1816-1819). A Western Union Receipt dated November 25, 2009 corroborated testimony that the meeting in the garage took place on Wednesday, November 25, 2009. (T 2275) Brian Smith - the actual shooter - testified he met with Appellant and that he acted on Appellant s request that he kill Torres, based on a promise for money later. During this garage meeting, Mr. Smith claimed that Mr. Duffy complained that John Torres was a pain in his ass and that Mr. Duffy needed to get rid of John Torres because he couldn t make any money as long as Mr. Torres was in the picture. According to Mr. Smith, Mr. Duffy claimed that John Torres was going to testify against him and against Nicole Torres and that John Torres stole over $300,000, guns and paperwork. Mr. Smith claimed that Daniel Duffy said he would pay whatever it would cost to get rid of him. Mr. Smith claimed that Daniel Duffy said that he would invest the money and make close to a million dollars for Brian Smith in exchange for John Torres murder. (T 2170-2171). A witness testified that Daniel Duffy stated to her that it was good that John Torres was dead because it helped his federal case. (T. 1889-1890). 13

POINT III THE TRIAL COURT DID NOT ERR DENYING APPELLANT S MOTION TO DISMISS THE WITNESS TAMPERING CHARGE (RESTATED) Appellant contends the trial court erred denying his motion to dismiss the witness tampering charge. The standard of review of a trial court's denial of a motion to dismiss is de novo. Simpson v. State, 33 So.3d 776, 778 (Fla. 4th DCA 2010). Appellant filed a motion to dismiss all counts (R 813-815). The trial court denied the motion to dismiss on June 14 th 2012 (R 825). Florida Rule of Criminal Procedure 3.151(c) provides: When a defendant has been tried on a charge of 1 of 2 or more related offenses, the charge of every other related offense shall be dismissed on the defendant's motion unless a motion by the defendant for consolidation of the charges has been previously denied, or unless the defendant has waived the right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses. Cases cited by Appellant are starkly distinguishable from this case. As to both State v. Gibson, 682 So. 2d 545 (Fla. 1996) and Festa v. State, 927 so. 2d 1049 (Fla. 4 th DCA 2006) those convictions were overturned on appeal. Here, there was no conviction - just a mistrial. Moreover, in Gibson the conviction 14

was overturned based on a Florida Supreme Court holding that there is no such a crime as attempted felony murder. In Fiesta, this Court held that retrial violated double jeapordy. Such is not the case here. Fields v. State, 743 So. 2d 92 (Fla. 5 th DCA 1999) is distinguishable as the concealment charge was a lesser offense of burglary for which the defendant had been acquitted. Moreover, here the state filed a motion to consolidate which was granted. As the court in Franklin v. State, 719 So.2d 938( Fla. 1st DCA 1998) observed in reaching it s holding that the defendant could not be tried for leaving the scene of an accident: Finally, although a mistrial was declared on the DUI manslaughter charge, appellant was nonetheless tried and acquitted on the leaving-the-scene charge; therefore, he was tried on a charge of one related offense. Id. Under the circumstances, the trial court erred in denying appellant's motion to dismiss under rule 3.151(c), and the conviction for leaving the scene must be reversed. Id., at 940 (emphasis added). Appellant was never convicted in his original trial nor was his case reversed on appeal. Furthermore, jeopardy had not attached. Accordingly, the trial court did not err. 15

CONCLUSION Wherefore, based on the foregoing arguments and the authorities cited therein, Appellee respectfully requests this Court AFFIRM Appellant s conviction and sentence. Respectfully submitted, PAMELA JO BONDI Attorney General Tallahassee, Florida /s/mitchell A. Egber MITCHELL A. EGBER Assistant Attorney General Florida Bar No. 35619 1515 North Flagler Drive Ninth Floor West Palm Beach, FL 33401-2299 (561) 837-5000 (561) 837-5099 fax Counsel for Appellee 16

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Answer Brief of Appellee" has been furnished by e-mail to: Sean M. Wagner, Wagner & Wagner, P.A. 1900 S. Harbor City Blvd., Suite 124 Melbourne, Florida 32901 at swagner@wagner-wagner.net on April 6, 2015. CERTIFICATE OF FONT SIZE This brief was typed in Courier New 12 type. /s/mitchell A. Egber Of Counsel 17