Please forgive me. I know a lot of these issues has been in previous posts; however, I was asked to bullet point everything, to the best of my ability as to what I think should have been included in the appeal. I hope that this is understandable and what I am being asked to do.
My son, Charles is a very bright young man. As I mentioned in the past, he graduated A/B honor roll from a Catholic School and is only 3 classes shy of a Bachelor’s Degree. What I do not often talk about is that he has mental difficulties and has been on medication and therapy for several years. They are still giving him medication in prison.
Before I bullet point what my son and I felt should have been added to the appeal, I will first go over a few appeal legalities from a layman’s point of view.(me)
The issues in a direct appeal are limited to what happened in court during the trial. However, there are exceptions.
Florida courts recognize three such exceptions: fundamental error, ineffective assistance of trial counsel, and cumulative error. Although these three developed separately, they should be (and, at least implicitly, are being) blended into a single rule: Appellate courts should address the merits of the issue if the record is sufficient to allow the court to do so. The record is sufficient if 1) the issue was preserved or 2) if unpreserved, the record is sufficient to allow the court to determine that a) error did occur and b) there was no legitimate tactical reason for defense counsel’s failure to preserve the issue. If conditions a) and b) are met, the court should reverse if the error was prejudicial. (Florida Bar Journal)
If it is clear from the record that prejudicial error occurred, it is the appellate court’s duty to reverse, in order to vindicate the defendant’s due process right to a fair trial. The label applied to the legal basis for reversal is irrelevant; what is important is the determination that is clear from the record that prejudicial error occurred.(Florida Bar Journal)
- The prior issues raised in the former appeal should be raised as ineffective assistance of counsel because Gary did not object to most of those issues.
- Gary did not put in any motion for suppression of any evidence which included 2 photo lineups, a video interrogation of my son’s so called confession or a Xerox copy of the guns. The police did not have the actual gun.
- Then, he did not object to the state entering the above items.
- Gary did not request an evidentiary hearing when the victim went from someone who could not identify the suspect at all, to being 100% sure that my son was the suspect. She had said she could only see the eyes and that the suspect was wearing a mask that covered half his face and a hoodie.
- Gary did not even question her about her original statement.
- Gary did not put the 911 tape in discovery where the victim said that she could not identify the suspect, nor did he question her about her 911 call.
- Gary did not question the detective about the fact that my son’s phone was not in the area during the time of the robbery. It is on her incident report. It is also part of the official trial transcript.
- The official trial transcript also shows that the detective lied on her sworn deposition. This may be a Brady violation because the prosecutor was in possession of this information
- Gary severed the second case against my son’s wishes.(If you read earlier portions of my blog, you would learn that there were 2 victims. There was no tactical reason to sever the offenses as they had been together for over 2-!/2 years. Also, the state and Gary knew that the 2nd victim refused to be a part of the fiasco and was not coming to trial. The prosecutor says so on the side bar.
- Gary did not do an opening statement.
- Gary did not cross examine the police officer on the scene; even though the police report said that the policeman said that the victim said that she would be unable to identify the suspect because she could only see the eyes.
The above bullets in my opinion show that Gary’s ineffectiveness is apparent on the face of the record.
Unpreserved ineffective assistance claims generally cannot be raised on direct appeal because they usually involve questions of fact that are unresolved in the record (particularly the question of defense trial strategy). However, such issues may be raised if “the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.”
There are two components to an ineffective assistance claim: “deficient performance” and “prejudice.”20 Ineffectiveness will be apparent on the face of the record only if both of these elements may be determined by the existing record. (Florida Bar Journal)
The following I believe can be raised on a direct appeal.
The judge did not allow mental health questions to be asked during jury selection.
The judge overruled Gary objecting to the state asking the detective if the bandana in the bag was the bandana that the victim said cover my son’s face. The court overruled and the detective quickly answered yes. Ironically, the prosecutor actually corrected himself and said, “I’m sorry. Fits the description of that?” By then the damage had been done.
Gary was not prepared and put in a motion for a continuance filed for the following.
1.Defendant needs more time to consult with Dr. Danziger to prepare for motion to suppress statements.
2.That there are three individuals who need to be deposed prior to trial, who previous counsel was unable to depose.
3. Assistant State Attorney, Matthew Tiffany, objects to this motion.
There is no order from the judge on the motion to continue.
- During the year, the issue of Charles’ competence became an issue. He was seen by 2 doctors in Florida. One doctor found him competent, the other did not. The judge was to have a competency status hearing. It never took place
- There is an order finding Charles competent to proceed to trial but no status hearing was held.
- After I had an attorney talk with Gary after the verdict. The attorney insisted on Gary putting in a motion for a new trial. He said that the motion for a new trial could be brought up in a direct appeal. This was not put in the appeal
- Gary also put in motions for acquittal during the trial. This was not put in the appeal.
- The conviction also has elements of double jeopardy. My son was convicted of attempted robbery with a firearm and aggravated assault with a firearm for the same victim and the same incident.
- The jurors sent several questions to the judge during deliberation which showed that they were very unsure of my son’s guilt. One of the questions was does all Glocks look alike because they only had a Xerox copy of the gun. They also asked how did both cases end up on the “lap” of the same detective. The jurors also wanted to see the video again.
- The judge allowed the video to go to the jury room during deliberation, even though her earlier instruction were that the jury had to watch the video in the presence of the court. The jurors did not ask to take the video with them only if they could watch it again. Ironically, it was the prosecutor that questioned the judge about allowing the jurors to look at the video alone but it was Gary that thought it was a great idea.
Please Note the following.
Allowing a jury to have access to videotaped witness statements during deliberations has much the same prejudicial effect as submitting depositions to the jury during deliberations. By permitting the jurors to see the interview once again in the jury room, there is a real danger that the statements will be unfairly given more emphasis than other testimony. Furthermore, unlike testimony in open court or even deposition testimony, the interviews are conducted on an ex parte basis without the right of cross-examination. Ruling would not prevent the trial judge from allowing the jury to view the videotape a second time in open court upon request pursuant to rule 3.410.
It was ineffective for Gary to not object to the video going to the jury room, especially when the jurors had so many good questions. Additionally, the video-tape was redacted. How do we know what else they saw as they were allowed to operate the video themselves.
At no time did Gary motion for a mistrial.
These are some of the issues that we feel should have been brought up on direct appeal. There are undoubtedly more but I am not an attorney