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 19 th 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 Good2300@BellSouth.net 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. 4 th 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 iv
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, 1334-1335. 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. 4 th 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-1325-1327,1334-1335. 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 Good2300@BellSouth.net 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 crimappwpb@myfloridalegal.com 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 Good2300@BellSouth.net Counsel for Appellant 10