Upload
carlos-miller
View
214
Download
0
Embed Size (px)
Citation preview
8/14/2019 CarlosMillerReplyBrief(3)
1/19
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,IN AND FOR MIAMI-DADE COUNTY FLORIDA
CARLOS MILLER, pro se
CASE NO. 08-326 AC
L.T. Case No. M0710544
Appellant/Petitioner,
v.
STATE OF FLORIDA,
Appellee/Respondent.
_________________________/
_____________________________________________________________
APPELLANTS REPLY BRIEF
_____________________________________________________________
8/14/2019 CarlosMillerReplyBrief(3)
2/19
ii
Table to Contents
Page
Table of Contents ii
Table of Citations iii, ii
Summary of the Argument 1-2
Argument 3-15
I. POLICE WERE NOT ACTING IN THE LAWFULEXECUTION OF A LEGAL DUTY
II. THE STATES INTRODUCTION OF THE BLOGCREATED AFTER THE ALLEGED INCIDENT WAS
IMPROPER EVIDENCE OF BIAS AND MOTIVE
WHOSE SOLE PURPOSE WAS TO INFLAME AND
UNFAIRLY PREJUDICE THE JURY.
III.THE TRIAL COURT SENTENCE VIOLATED THE DUEPROCESS RIGHTS OF THE DEFENDANT.
IV. APPELLANT HAS PROVIDED THE RELEVANT ANDADEQUATE PORTIONS OF RECORD TO SUPPORTHIS ARGUMENTS.
Conclusion 15
Certificate of Service 16
Certificate of Font Size and Type 17
3-6
6-10
10-12
12-15
8/14/2019 CarlosMillerReplyBrief(3)
3/19
iii
Table to Citations Page
B.L.M. v. State, App. 5 Dist., 684 So.2d 893 (1998)
Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)
In Interest of T.M.M., App. 4 Dist., 560 So.2d 80 (1990)
J.G.D. v. State, App. 3 Dist., 724 So.2d 711(1999)
Jay v. State, App. 4 Dist., 731 So. 2nd
774 (1999)
Lee v. State, App. 3 Dist., 368 So.2d 395 (1979)
Lee v. State, App. 3 Dist., 422 So.2d 928 (1982)
Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999)
Melton v. State, 949 So. 2d 994 at 1015 (Fla. 2006)
Perper v. Edell, 44 So.2d 78 (1949)
Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986)
Ritter v. State, 885 So. 2d 413 (Fla. 2004)
Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997)
Wilson v. State, App. 2 Dist., 707 So.2d 893 (1998)
6
12
6
6
5
6
9
12
10
9
12
12
10
6
8/14/2019 CarlosMillerReplyBrief(3)
4/19
iv
Other Authorities Page
843.02, Florida Statute
924.06, Florida Statute
Florida Jur 2d Appellate Review, 101.
Florida Jur 2d Appellate Review, 179
Florida Rule of Appellate Procedure 9.200
6
12
12
1213
13, 15
8/14/2019 CarlosMillerReplyBrief(3)
5/19
1
SUMMARY OF ARGUMENT
The Trial Courts conviction of resisting an officer without violence
needs to be overturned because police were not acting in the lawful
execution of a legal duty when they arrested Appellant.
The five officers had already concluded their investigation into the
traffic accident, which is why all five officers were able to walk away from
the scene and approach the lone photographer, the Appellant, who was
standing inside a barricaded construction zone where traffic was not
allowed.
Although the State acknowledges that police escorted Appellant to the
sidewalk on the other side of the street, the State contradicts itself in its
answer brief by placing the Appellant back on the street, which is the only
way to justify the arrest.
But after the Appellant was escorted across the street, he was lawfully
standing on a public sidewalk, neither endangering himself nor anybody
else, and was arrested only because he exercised his First Amendment right
to photograph the officers.
The State also introduced improper character evidence that was
legally unreliable and had absolutely no relevancy to the case on trial.
8/14/2019 CarlosMillerReplyBrief(3)
6/19
2
Using evidence that came into existence after the arrest and in one
case, more than a year after the arrest, the State attempted to prove
predisposed bias and motive that lead to the arrest, which is an impossibility.
In the process, the State used the words Nazi and Gestapo, which
inflamed the jury to the point where they convicted the Appellant of
resisting without violence while acquitting him of refusing a lawful
command and disorderly conduct, making it a true inconsistent verdict.
Ultimately, the State failed to prove how the evidences probative
value substantially outweighed its unfair prejudice on the Defendant.
The Trial Court also committed fundamental reversible error by issuing
an illegal sentence based on the Appellants maintenance of innocence
throughout the trial, which is constitutionally impermissible and a violation
of the Appellants due process rights, which is why this argument is
appealable despite the fact that failed to preserve the record in the lower
tribunal.
And finally, the Appellant has provided the relevantand adequate
portions of the transcript that must necessarily be considered to prove that
prejudicial error was actually committed.
8/14/2019 CarlosMillerReplyBrief(3)
7/19
3
ARGUMENT
I. POLICE WERE NOT ACTING IN THE LAWFULEXECUTION OF A LEGAL DUTY
The State continues to assert that the Appellant was standing in the
middle of the street when he was arrested even though police officer
testimony confirmed that he had been escorted to the sidewalk before he
was arrested. [A. 3, page 5, line 14]
In fact, the State contradicts itself in its argument by confirming that
the Appellant was escorted to the sidewalk but then somehow was arrested
on the roadway. In its answer brief, the State wrote:
As a result of the Appellants actions, Miami Police
officials were forced to diver their attention from the bus
accident and attend to the Appellant, ultimately
escorting him to a sidewalkin direct vicinity of theaccident.
The State then followed this sentence up with:
Following the Appellants multiple refusals to obey
commands tostep out of the roadway, an initial attempt
to arrest was made. However, the Appellant continued todisregard police authority by physically resisting the
arrest. Ultimately, the officers were able to subdue theAppellant and effectuate arrest.
8/14/2019 CarlosMillerReplyBrief(3)
8/19
8/14/2019 CarlosMillerReplyBrief(3)
9/19
5
The truth is, police had already concluded their accident investigation,
which is why all five officers were able confront the Appellant after he
took photos of the officers. [A.1, page 13, line 14-16]
The truth is, police arrested the Appellant on the east sidewalk after
they escorted and released him because he continued to snap photos while
they were ordering him to leave an area where he was lawfully standing.
The truth is, police did not have probable cause to arrest Appellant.
The truth is, police were not acting in the lawful execution of a legal
duty, nulling the legal requirements for a resisting an officer without
violence conviction.
According to Jay v. State, App. 4 Dist., 731 So. 2nd 774 (1999), the law
distinguishes between a police officer in the lawful execution of any legal
duty and a police officer who is merely on the job.
In the instant case, the officers were merely on the job, having
concluded an investigation before getting annoyed at a journalist who was
taking their photos in public.
8/14/2019 CarlosMillerReplyBrief(3)
10/19
6
As pointed out by the State, a police officer must be engaged in a
lawful execution of a legal duty in order to convict a person of resisting an
officer without violence, (F.S. 843.02).
Otherwise, a person is entitled to resist arrest without violence, as
settled in B.L.M. v. State, App. 5 Dist., 684 So.2d 893 (1998).
This fact is confirmed by a multitude of other cases, including J.G.D. v.
State, App. 3 Dist., 724 So.2d 711(1999); Wilson v. State, App. 2 Dist.,
707 So.2d 893 (1998); and T.M.M., App. 4 Dist., 560 So.2d 80 (1990).
But considering that the Appellant was acquitted of refusing a lawful
order and disorderly conduct, the most relevant case is Lee v. State, App. 3
Dist., 368 So.2d 395 (1979), which states the following:
Where prosecution did not prove the legality of the arrest
which defendant resisted, an essential element of the
crime of resisting an officer without violence was not
established and the omission required reversal ofdefendants conviction.
II. THE STATES INTRODUCTION OF THE BLOG WHICHWAS CREATED AFTER THE ALLEGED INCIDENT WAS
IMPROPER EVIDENCE OF BIAS AND MOTIVE WHOSESOLE PURPOSE WAS TO INFLAME AND UNFAIRLY
PREJUDICE THE JURY
While the court is given broad discretion in the use of
evidence to show bias or motive, it was inadmissible in the
8/14/2019 CarlosMillerReplyBrief(3)
11/19
7
instant case because the State was depending on evidence
that occurred after the Appellant was arrested.
The State would like the Court to believe that the Appellant purposely
got himself arrested in order to launch a successful website
(www.carlosmiller.com) and produce a Hollywood blockbuster film, which
would enable him to cash in on all the pecuniary gain or notoriety that
comes with such an arrest. [Appellees brief, page 11]
The State would also like the Court to believe that the Appellant
harbors such deep resentment against police officers, that he would risk
vehicular homicide by standing in the middle of a busy street to take photos
of police in defiance of their commands.
But the State has been unable to proof that the Appellant had
premeditated his arrest in order to pursue the above projects.
The truth is, the Appellant did not launch his blog until April 28 th,
2007, more than two months after his arrest. And he only did so because
there had been a plethora of misinformation about his arrest on the internet
through blogs and news articles.
The Appellant wanted to do what any journalist would do in that
position. Set the record straight through his writing. He also planned to
8/14/2019 CarlosMillerReplyBrief(3)
12/19
8
document his trial, but his trial dates were continually delayed for a variety
of different reasons.
During this time, he began documenting allegations of police abuse
against journalists and photographers throughout the country because his
own arrest had put him on the forefront of what he perceived were an
onslaught of First Amendment violations running rampant.
In the incident introduced by the State that resulted in improper
character evidence, a group of Los Angeles police officers were caught on
video bashing the legs of Mexican children with nightsticks as well as
trampling over news videographers.
In only two articles in the entire blog, the Appellant used the words
Gestapo and Nazis as metaphors to describe what he believed were
serious civil rights violations conducted by the LAPD.
As it turned out, the City of Los Angeles ended up paying more than
$13 million in settlements as a result of these incidents. [A.17, A. 18]
The State also mentioned an article that the Appellant posted on June
5th, 2008 more than 15 months after his arrest - where he stated that he
was working on a documentary film about photographers getting their civil
rights violated. [Appellees brief, page 11] It is perverse for the State to
8/14/2019 CarlosMillerReplyBrief(3)
13/19
9
argue that there is a scintilla of relevance in this evidence to show a motive
for resisting arrest. Moreover, the State has not shown how this evidences
probative value substantially outweighs its unfair prejudice on the
Defendant.
According to Lee v. State, App. 3 Dist., 422 So.2d 928 (1982):
Evidence of bias may be inadmissible when it creates a
danger of unfair prejudice, confusion of the issues,
misleading of the jury or results in needless
presentation of cumulative evidence and, for example,should the trial court find the form of a proffered
questions is designed to elicit bias which may be too
remote in time from the incident in question, he may
properly conclude that the probative value of an answer
thereto might be outweighed by the tendency of theanswer to confuse the issues or mislead the jury.
In the instance case, the evidence did not even come into existence until
after the arrest, which makes it impossible for it to have been a motive for
the Appellant to get himself arrested or to prove that he harbored bias
against police officers at the time of his arrest. It is a pure impossibility.
It did nothing but mislead, inflame and confuse the jurors to the point
where they convicted the Appellant for resisting without violence, despite
acquitting him of refusing a lawful order and disorderly conduct.
As stated in Perper v. Edell, 44 So.2d 78 (1949):
8/14/2019 CarlosMillerReplyBrief(3)
14/19
10
If the introduction of certain evidence tends in actual
operation to produce a confusion in the minds of the
jurors in excess of legitimate probative effect of such
evidence and tends to obscure rather than illuminate the
true issue before the jury, such evidence should be
excluded.
III. THE TRIAL COURT SENTENCE VIOLATED THEDUE PROCESS RIGHTS OF THE DEFENDANT
The State argues that the Appellants sentence must stand because he
failed to object during the trial, therefore failing to preserve the record.
The State also argues that even if the Appellant had preserved the
record, he would not have a valid argument because the Trial Courts
sentence fell within the legal guidelines.
However, when the Trial Court handed down a harsher sentence than
sought by the State, basing it on the Appellants lack of remorse, the
Trial Court committed fundamental REVERSIBLE error by issuing an
illegal sentence, meaning the Appellant had every right to appeal the issue
despite him failing to object to it during the trial.
The State argues that the Trial Courts mention of Appellants lack of
remorse was merely a passing reference, basing this argument on two
cited cases; Melton v. State, 949 So. 2d 994 at 1015 (Fla. 2006) and
Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997).
8/14/2019 CarlosMillerReplyBrief(3)
15/19
11
But in the former case, the lack of remorse reference was made during
the Trial Court, not during the sentencing, which is why the Appellate
Court affirmed the conviction.
And in the latter case, the mention of lack of remorse came from the
prosecutor, not the judge, meaning it really had no bearing on the actual
sentence.
However, in the instant case, the judge not only stated he was
shocked at Appellants lack of remorse during the sentencing phase of
the trial, he stated those words immediately before sentencing the
Appellant, as demonstrated below:
Im shocked at your lack of remorse.
The jury, having found you guilty, Im adjudicating youguilty, imposing a $250 fine plus court costs and
surcharges. Im placing you on one year reporting
probation; special condition, anger course; special
condition, 100 hours of community service at a rate of
ten hours, minimum, per month, and all conditions to becompleted within ten months of today.
The fact that the Trial Court based its sentence on the Appellants
maintenance of innocence was constitutionally impermissible and a
violation of the Appellants due process rights.
8/14/2019 CarlosMillerReplyBrief(3)
16/19
12
This is confirmed by numerous court rulings and case law, including
Ritter v. State, 885 So. 2d 413 (Fla. 2004); Lyons v. State, 730 So. 2d 833
(Fla. 4th DCA 1999); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986);
and Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984).
Furthermore, the fact the Appellants due process rights were violated
constitutes fundamental error as well as illegal sentencing, which are
appealable without having to preserve the record, according to F.S. 924.06
and Section 101 of the Florida Jur 2d Appellate Review.
IV. APPELLANT HAS PROVIDED THE RELEVANT ANDADEQUATE PORTIONS OF RECORD TO SUPPORT
HIS ARGUMENTS.
The State argues that the Appellant has failed to provide an adequate
record of the testimony and findings rendered during trial.
However, the Appellant provided the necessary and relevant portions of
the transcript to support his three arguments, including seven excerpts
totaling more than 100 pages.
Thus, he has provided the adequate record which is all that is asked
for. See Section 179. Florida Jur2d Appellate Review.
8/14/2019 CarlosMillerReplyBrief(3)
17/19
13
Nowhere in the Rules of Appellate Procedure is it required that the
Appellant must provide the entire transcript of the trial. The law
specifically states that the Appellant is required to provide only the
adequate portions of the transcript or every phase of the trial proceedings
that must necessarily be consideredin order that it may be determined
whether prejudicial error was actually committed. Id.
And while the State cites Florida Rule of Appellate Procedure 9.200 to
support its argument, it fails to point out that the first section of the rule
specifically states the following:
Except as otherwise designated by the parties, the
record shall consist of the original documents, exhibits, and
transcripts of proceedings, if any, filed in the lower
tribunal, except summonses, praecipes, subpoenas, returns,
notices of hearing or of taking deposition, depositions,
other discovery, and physical evidence.
The key phrase here is if any because in the instant case, there was no
transcript filed in the Lower Tribunal
When the Appellant inquired where he could get a copy of the
transcript, he was directed to a private court reporting company called
Absolute Video, 168 SE 1st St., # 707, Miami, FL 33131. Because it was a
8/14/2019 CarlosMillerReplyBrief(3)
18/19
14
two-day trial, the Appellant was told it would cost $3,000 to get the entire
trial transcribed.
Therefore, when faced with a $3,000 fee to transcribe the entire trial,
the Appellant instead purchased a $25 audio CD of the trial and spent
several days listening for the relevant and adequate portions that pertained
to his arguments, which he then ordered transcribed to include in the record
of appeal.
Furthermore, the State filed for two 45-day motions for extension since
the Appellant filed the initial brief, meaning it had more than three months
to either come up with the entire transcript if it so desired or at least advise
the Appellant to do so.
But the State would not even notify the Appellant when it was filing
these motions for extension, which goes against proper procedure,
justifying these refusals by pointing out that the Appellant is pro se.
However, if the court believes the submitted transcript is inadequate to
prove that prejudicial error was committed, then the Appellant respectfully
requests that the lower tribunal be ordered to transcribe the trial.
8/14/2019 CarlosMillerReplyBrief(3)
19/19
15
But if that is not possible, then the Appellant requests that he be given
the opportunity to come up with the transcript under Fla. R. App. P. 9.200
(f) (2), which states the following:
If the court finds the record is incomplete, it shall direct
a party to supply the omitted parts of the record. No
proceeding shall be determined, because of an
incomplete record, until an opportunity to supplement the
record has been given.
This rule was enacted to prevent the State from using a legal
technicality to affirm a conviction against a pro se appellant instead of an
actual legal argument based on the merits of the case, according to Fla. R.
App. P. 9.200 (Committee Note, 1977 Amendment).
We believe that strict compliance with the rule is
particularly important in cases such as this, where a pro
se litigant is not likely to be familiar with the intricaciesof appellate practice.
CONCLUSION
The Appellant respectfully requests this court overturn the conviction
and enter a directed verdict in favor of the defendant as a matter of law
towards his resisting an officer without violence charge.
Alternatively, appellant seeks that the conviction for resisting without
violence be overturned and that he be given a new trial on the charge.