sc11-2471 jurisdictional initial brief
TRANSCRIPT
PROVIDED TO LAKE Cl
MILTON HALL
Petitioner,
vs.
STATE OF FLORIDA
Respondent.
COURT OF FLORIDA
sc
THIRD
L.T.
DCA
Case
Case
Case
No:
NO:
NO:
11-2471"
3D08-2580
03-2072
DISCRETIONARY REVIEW OF DECISION OF THE
DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT
AMENDED BRIEF OF PETITIONER ON JURISDICTION
MILTON HALL
DC# M00571
LAKE CORR. INST.
19225 U.S. HWY 27
CLERMONT, FLORIDA 34715
PRO SE
TOPICAL INDEX TO BRIEF
^^ PAGE NUMBER
TOPICAL INDEX TO BRIEF i
TABLE OF CITATIONS _=-_----L -L 111
APPENDIX
STATEMENT OF THE CASE AND FACTS 1_2
SUMMARY OF THE ARGUMENT 2
ARGUMENT 2 _ 8
ISSUE
The decision of the Third District Court in
Hall v. State, 36 Fla.L.Weekly D2144 (Fla.
3rd DCA Sept. 28, 2011) expressly anddirectly conflicts with the decisions of
this Court in Cooper v. State, 43 So. 3d 42
(Fla. 2010); State v. DiGuilio, 491 So.2d
1129 (Fla. 1986); and Knowles v. State,
848 So.2d 1055 {Fla. 20~03~K on the samepoint of law.
Conclusion 10
Certificate of Service10
I < ■*
TABLE OF CITATIONS
CASES PAGE NUMBER
Aguilera v. Inservices, Inc., 3
905 So.2d 84 (Fla. 2005)
Chapman v. California, 6,10
87 S. Ct. 824, 386 U.S. 18 (1967)
Cooper v. State, 2,3,5
43 So.3d 42 (Fla. 2010)
Duncan v. Moore 9
754 So.2d 708 (Fla. 2000)
Erickson v. Pardus, iii
127 S. Ct. 2197 (2007)
Haines v. Kerner, iii
92 S. Ct. 592 (1972)
Jimenez v. Weinberger, 9
417 U.S. 628, 94 S. Ct. 2496 (1974)
Knowles v. State, 2,3,6
848 So.2d 1055 (Fla. 2003)
Lewis v. State, 8
780 So.2d 125 (Fla. 3rd DCA 2001)
Miller v. Pate, 9
87 S. Ct. 785 (1967)
Miller v. State, 8
782 So.2d 426 (Fla. 2nd DCA 2001)
Moore v. Illinois, 8
92 S. Ct. 2562, 408 U.S. 786 (1972)
Robinson v. State, 8
989 So.2d 747 (Fla. 2nd DCA 2008)
Ruiz v. State, 8
743 So.2d 1 (Fla. 1999)
11
State V. DiGuilio. 2 3 4 5 s q i n491 So.2d 1129 (Fla. 1986) 2,3,4,5,6,9,10
State v. Lee, 5 6
531 So.2d 133 (Fla. 1988)
U.S. v. Carter, 9
236 F.3d 777 (6th Cir. 2001)
Winqate v. Mach, 8
117 Fla. 104, 157 So. 421 (Fla. 1934)
APPENDIX
ITEM
PAGE NUMBER
Opinion of the Third District Court of Appeal 1-2in State v. Hall. 36 Fla.L.Weekly D2144
(Fla. 3rd DCA Sept. 28, 2011)1.
'Pro se pleadings must be liberally construed in favor of the pro se litigant, however inartfully pled they may beHames v. Kerner, 92 S. Ct. 594 (1972). See also Erickson v. Paid™. 127 S. Ct. 2197 (2007).
Ill
STATEMENT OF THE CASE AND FACTS
Petitioner, Milton Hall, adopts all statement of case and
facts presented in His initial brief on direct review.
Petitioner was charged by grand jury indictment with one
count of murder in the first degree, contrary to §782.04,
Florida Statutes (2003), and one count of robbery with a
firearm, contrary to §812.13(2) (A), Florida Statutes (2003).
Petitioner proceeded to a jury trial. m closing
arguments, the State Prosecutor made several improper arguments
regarding the testimony of a witness, (Hall's mother, Ms. Grant)
by repeatedly mischaracterizing evidence which Ms. Grant
testified to. This error amounted to prosecutorial misconduct
and was compounded by the trial court's erroneous overruling of
the defense's objection to the improper comments.
Petitioner was found guilty as charged, although the jury
did not recommend the death sentence. On direct review, the
Third District Court of Appeal found that "the asserted error,
'if any', was harmless beyond a reasonable doubt." The Court
also found that "the State's closing argument could reasonably
have been interpreted as calling upon the jury to assess the
credibility of the witness's testimony, rather than a
mischaracterization of what that witness testified to at trial."
(See, footnote 1, Appendix). Affirmed September 28, 2011.
1
Petitioner filed rehearing and certification of question of
great public importance but was denied on October 19, 2011.
In light of Cooper v. State, 43 So.3d 42 (Fla. 2010);
State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v.
State, 848 So.2d 1055 (Fla. 2003), Petitioner certifies conflict
under the misapplication of law which creates conflict
jurisdiction.
Appeal was timely filed with this Honorable Court. Notice
to invoke Discretionary Jurisdiction has been requested by
Petitioner. This Court should accept jurisdiction.
SUMMARY OF ARGUMENT
The Third District Court of Appeals misapplied this Court's
prior decision in Cooper v. State, 43 So.3d 42 (Fla. 2010);
State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v.
State, 848 So.2d 1055 (Fla. 2003), by improperly finding that
the Prosecutor's mischaracterization of witness testimony (the
false identification of her son on surveillance video of a first
degree murder and armed robbery trial) was harmless beyond a
reasonable doubt.
ARGUMENT
The decision of the Third District Court of Appeals in Hall
v- State, 36 Fla.L.Weekly D2144 (Fla. 3rd DCA Sept. 28, 2011)
expressly and directly conflicts with the decisions of this
Court in Cooper v. State, 43 So.3d 42 (Fla. 2010); State v.
DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v. State, 848
So.2d 1055 (Fla. 2003), on the same point of law.
This Court has previously found express conflict
jurisdiction based upon the misapplication of prior decisions of
this Court. See, Aguilera v. Inservices, Inc., 905 So.2d 84
(Fla. 2005)
wWe have jurisdiction pursuant to article V, section 3
(b) (3), Florida Constitution. See Art. V, §3 (b)
(3), Fla. Const. See also Knowles v. State, 848 So.2d
1055 (Fla. 2003) (accepting jurisdiction based on
conflict created by misapplication of decisional law;
Robertson v. State, 829 So.2d 901, 904 (Fla. 2002)
(Stating that misapplication of decisional law creates
conflict jurisdiction); Acensio v. State, 497 So.2d
640, 641 (Fla. 1986) (accepting jurisdiction based on
conflict by misapplication of decisional law."
This Court should find conflict based on misapplication of
several prior decisions by this Court on the same point of law.
A.
Error Is Harmful Even "If" Guilty Verdict Would Otherwise Been
Returned
State v. DiGuilio, 491 So.2d 1129 (Fla. 1986):
Under Florida's harmless error standard, error is harmful
even though a guilty verdict most probably would have been
returned in the absence of that error. If error resulted in the
jury's consideration of some matter (evidence, jury instruction,
or closing argument for example) that the jury would have
otherwise not have considered, and that matter supports the
prosecution's case, error is harmful even though guilty verdict
would have occurred in the absence of the error.
The test is not a sufficiency-of- the -evidence, a
correct result, a not clearly wrong, a substantial
evidence, a more probable than not, a clear and
convincing or even an overwhelming evidence test.
Harmless error is not a device for the appellate court
to substitute itself for the trier-of-fact by simply
weighing the evidence. The focus is on the effect of
the error on the trier-of-fact. The question is
whether there is reasonable possibility that the error
affected the verdict. The burden to show the error
was harmless must remain with the State. If the
appellate court cannot say beyond a reasonable doubt
that the error did not affect the verdict then the
error is by definition harmful.
State v. DiGuiolio, 491 So.2d 1129, 1139 (Fla. 1986) (Emphasis
Added).
Although the District Court expressed the language required
of the DiGuilio standard, (harmless beyond a reasonable doubt).
When reviewing the excerpts from the trial transcripts, the
District Court erroneously substituted itself for the trier-of-
fact by quite possibly weighing the strength of DNA evidence,
and considering the inadmissible evidence of the jailhouse
telephone conversation between Hall and his mother. This
evaluation is expressed throughout the opinion of the District
Court, where the Court stated, "the asserted error, 'if any'..."
As well as when the Court stated "After conducting a thorough
review of the closing arguments as well as the entirety of the
evidence..." Combined, these two phrases along with the
findings in (footnote 1) would lead this Court to call into
question the process and standard of review employed by the
District Court in their analysis of the alleged error.
This Court has continuously reaffirmed this principle in
several cases such as Cooper v. State, Knowles v. state and
State v. Lee.
Cooper v. State, 43 So.3d 42 (Fla. 2010):
In Cooper, this Court found that the Second District Court
had erroneously considered the strength of Cooper's guilt in his
taped statement when applying the harmless error test under
DiGuilio. Likewise, the Third District Court considered the
"entirety of the evidence" which included incrimination DNA
evidence and, quite possibly, the Court could have considered
the inadmissible jailhouse conversation against the Petitioner
in substitution for the trier-of-fact. Petitioner would rely on
this Court's decision to remand Cooper's case to the Second
District Court for reconsideration of the harmless error
standard enunciated in DiGuilio. As the same principle of law
governs here where the District Court erroneously considered the
"entirety of the evidence" when in fact the trial transcripts
contained the entire alleged error or Prosecutorial misconduct.
The "entirety of the evidence" tainted the intended impartial
process designed by the United States Supreme Court in Chapman
v. California, and later adopted by the Florida Supreme Court in
State v. DiGuilio; Knowles v. State; and State v. Lee.
Knowles v. State, 848 So.2d 1055 (Fla. 2003) :
This Court clarified the DiGuilio standard as requiring
reversal even where a guilty verdict would have been returned in
absence of the error. In Knowles this Court reversed the Second
District Court of Appeals' determination that error was harmful
only where it "substantially influenced the jury's verdict."
Id., at 1059.
State v. Lee, 531 So.2d 133 (Fla. 1988):
In Lee, this Court held that
Overwhelming evidence of guilt does not negate the
fact that an error that constituted a substantial part
of the prosecutor's case may have played a substantial
part in the jury's deliberations and thus, contributed
to the actual verdict reached, for the jury may have
reached its verdict because of the error without
considering other reasons untainted by the error that
would have supported the same result.
(Citation omitted). State v. Lee, Id., at 137.
In this line of reasoning by this Honorable Court, the
Third District Court should not have considered "the entirety of
the evidence" because such abundance of evidence is irrelevant
under the standard of the harmless error analysis as set
in State v. DiGuilio.
B.
The District Court's Misinterpretation of Transcript,
Prosecutor's Mischaracterization of Evidence
During trial, Ms. Grant was asked several times could she
recognize anyone on the surveillance video:
9. Q: Did you recognize anyone in that surveillance video?
(TR. 2685) .
11. A: I recognized Chico because his face. That's all they
were showing was him. (TR. 2686).
14. Q: When you looked at the surveillance video did you
recognize anyone else?
16. A: No. (TR. 2713).
17. Q: And in that surveillance video, you remember seeing you
son, right?
19. A: No. I didn't never seen my son on the surveillance
video. (Emphasis added).
Whereafter, the Prosecutor improperly mischaracterized the
witness's testimony about the identification of her son on the
surveillance video:
(TR. 3850:) "What.. .Hall... doesn' t bank on is his mom
recognizing him. She recognizes him as her son..."
(TR. 3851:). This may have been the worst day of her
life [for Hall's mother] because she sees him not only
once, she sees him again. For two weeks she sees
nothing but these videos on television because she is
watching the news and she is worried..." (TR. 3851:)"
This Hall, Milton Hall walking by. Mom saw this
too..." (TR. 3865:) w [b]ecause Mom [sic] made an
Id..." (TR. 3871:) "Hall's mother saw him on the video
tape..." (TR. 3769:) "You don't have to be a momma to
recognize Milton Hall [in the picture]"2
The subject of Ms. Grant-identifying her son on
surveillance video was material to the State's case despite DNA
evidence. The United States Supreme Court has held that [a]
witness identification is material to the State's case. See
Moore v. Illinois, 92 S. Ct. 2562, 408 U.S. 786, Id., at 2573.
This Court has also held that "A material witness is one
who possesses information going to some fact affecting the
merits of the case and about which no other might testify".
Wingate v. Mach, 117 Fla. 104, 157 So. 421 (Fla. 1934).
Affirmatively, Ms. Grant was the only witness who could
testify whether or not her son was on the surveillance video.
Petitioner would further submit that Prosecutorial misstatement
of evidence is reversible error by State and Federal law.
Please see: Robinson v. State, 989 So.2d 747 (Fla. 2nd DCA 2008)
(misstated witness testimony-Reversed); Miller v. State, 782
2 Although Petitioner presented 6 excerpts from the trial transcript, only two were properly objected to andoverruled. (TR. 3850; 3871). Inasmuch, this Court should consider the accumulative affect of all the impropercomments, as that "the judicial process has been compromised and the resulting convictions and sentencesirreparably tainted". Id., at 7. Ruiz v. State. 743 So.2d 1 (Fla. 1999); in accord, Lewis v. State. 780 So 2d 125 (Fla3rd DCA 2001). ' v '
So.2d 426 (Fla. 2nd DCA 2001) (mischaracterized witness
testimony-Reversed); Miller v. Pate, 87 S. Ct. 785 (1967)
(misrepresented evidence-Reversed) and U.S. v. Carter, 236 F.3d
777 (6th Cir. 2001) (misstated witness testimony-Reversed).
Accordingly, whether it is State or Federal Courts, it is
well-established law that prosecutors may not misstate,
misrepresent or mischaracterize any part of the evidence
presented at trial. The Third District reasoning that "the
asserted error, xif any' was harmless beyond a reasonable doubt"
is clearly erroneous in comparison to Petitioner's error, and
the similar errors presented in the cases above. The District
Court findings does nothing more than track the language
necessary under the DiGuilio standard but does not apply the
harmless error standard with impartiality.
Article I, Section 2, Florida Constitution under Florida
law, Equal Protection requires persons of similar situations be
treated similar. See Duncan v. Moore, 754 So.2d 708 (Fla.
2000) .
The United States Constitution provides that no State shall
deny to any person within its jurisdiction the equal protection
of the law. U.S. Constitutional Amend. 14 §1, Jimenez v.
Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L.Ed.2d 363 (1974).
Affirmatively, Petitioner states that he is being denied
the minimal amounts of due process and equal protection
guaranteed him by the Florida Constitution, Art. I, §2, and the
equal protection of law guaranteed by the United States
Constitution, Amend. 14 under the harmless error standard
established in Chapman v. California, 87 S. Ct. 824, and State
v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
CONCLUSION
WHEREFORE, based upon the above-mentioned facts, arguments
and citations of authority, Petitioner prays that this Honorable
Court invokes its jurisdiction and properly corrects the Third
District Court's misapplication of law which has been
erroneously applied to Petitioner's case, where Petitioner
herein has undoubtedly demonstrated that the error asserted
"affected" or, at least, "contributed" to the jury's guilty
verdict. DiGuilio.
It is so.
UN-NOTARIZED OATH
UNDER PENALTIES OP PERJURY, pursuant to §92.525, Fla. Stat.
I hereby certify that I have read the foregoing instrument and
all facts contained herein are true and correct.
Ha
Milton Hall, DC# M00571
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the
foregoing instrument has been placed in the hands of prison
officials and furnished to:
Clerk of Court
Florida Supreme Court Building
500 South Duval Street
Tallahassee, FL 32399-1925
Office of Attorney General
444 Brickell Avenue Suite 650
Miami, FL 33131
By handing U.S. Mail on this the
/a b$MATC\/ , 2012.
day of
Q
MILTON HALL, DC# M00571
LAKE CORR. INST.
19225 U.S. HWY 27
CLERMONT, FL 34715
11