IN THE SUPREME COURT OF FLORIDA
GREGORY TYRONE ANDERSON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
Case No. SC14-737
JURISDICTIONAL BRIEF OF RESPONDENT
PAMELA JO BONDI
ATTORNEY GENERAL
TRISHA MEGGS PATE
TALLAHASSEE BUREAU CHIEF,
CRIMINAL APPEALS
FLORIDA BAR NO. 0045489
JAY KUBICA
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0026341
OFFICE OF THE ATTORNEY GENERAL
PL-01, THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
(850) 922-6674 (FAX)
COUNSEL FOR RESPONDENT
Filing # 14389847 Electronically Filed 06/03/2014 05:21:43 PM
RECEIVED, 6/3/2014 17:23:40, John A. Tomasino, Clerk, Supreme Court
ii
TABLE OF CONTENTS
PAGE#
TABLE OF CONTENTS ................................................... ii
TABLE OF CITATIONS ................................................. iii
PRELIMINARY STATEMENT ................................................ 1
STATEMENT OF THE CASE AND FACTS ...................................... 1
SUMMARY OF ARGUMENT .................................................. 2
ARGUMENT ............................................................. 3
ISSUE: WHETHER THE DISTRICT COURT OF APPEAL’S DECISION IN THE INSTANT
CASE IS IN DIRECT AND EXPRESS CONFLICT WITH NEINER V. STATE, 875 SO.2D
699 (FLA. 4TH DCA 2004) OR RIVERA V. STATE, 561 SO.2D 536 (FLA. 1990)?
(RESTATED) ........................................................... 3
CONCLUSION ........................................................... 8
CERTIFICATE OF SERVICE ............................................... 9
CERTIFICATE OF COMPLIANCE ............................................ 9
APPENDIX
iii
TABLE OF CITATIONS
CASES PAGE#
Anderson v. State,
133 So.3d 646 (Fla. 1st DCA 2014) ............................... 6, 7, 10
Ansin v. Thurston,
101 So. 2d 808 (Fla. 1958) ............................................. 4
Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling
Service, Inc.,
498 So. 2d 888 (Fla. 1986) ............................................. 3
Dodi Publishing Co. v. Editorial America, S.A.,
385 So. 2d 1369 (Fla. 1980) ............................................ 4
Griffin v. State,
827 So.2d 1098 (Fla. 1st DCA 2002) ..................................... 6
Jenkins v. State,
385 So. 2d 1356 (Fla. 1980) ............................................ 3
Jollie v. State,
405 So. 2d 418 (Fla. 1981) ............................................. 4
Neiner v. State,
875 So.2d 699 (Fla. 4th DCA 2004) ............................ ii, 2, 3, 5
Persaud v. State,
838 So. 2d at 533 ...................................................... 4
Reaves v. State,
485 So. 2d 829 (Fla. 1986) ............................................. 3
iv
Rivera v. State,
561 So.2d 536 (Fla. 1990) ................................. ii, 2, 3, 5, 6
Stallworth v. Moore,
827 So. 2d 974 (Fla. 2002) ............................................. 3
STATUTES AND CONSTITUTIONS
§90.401, Fla. Stat ....................................................... 6
§90.402, Fla. Stat ....................................................... 6
Article V, § 3(b)(3), Fla. Const ......................................... 3
RULES
Fla. R. App. P. 9.030(a)(2)(A)(iv) ....................................... 3
PRELIMINARY STATEMENT
Respondent, the State of Florida, the Appellee in the District Court of
Appeal (DCA) and the prosecuting authority in the trial court, will be
referenced in this brief as Respondent, the prosecution, or the State.
Petitioner, Gregory Anderson, the Appellant in the DCA and the defendant in
the trial court, will be referenced in this brief as Petitioner or by
proper initials.
"PJB" will designate Petitioner's Jurisdictional Brief. That symbol is
followed by the appropriate page number.
A bold typeface will be used to add emphasis. Italics appeared in
original quotations, unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
The pertinent history and facts for jurisdictional purposes are only
those contained within the lower court’s opinion, and consequently are set
out in such opinion, attached in the State’s Appendix.
2
SUMMARY OF ARGUMENT
This Court should determine it does not have jurisdiction because the
decision of the court in the instant case does not expressly and directly
conflict with the decisions of either Neiner v. State, 875 So.2d 699 (Fla.
4th DCA 2004), or Rivera v. State, 561 So.2d 536 (Fla. 1990). Both Neiner
and Rivera hold that relevant evidence is admissible for the defense, which
is wholly consistent with the holding in the instant case that collateral,
irrelevant evidence is inadmissible.
3
ARGUMENT
ISSUE: WHETHER THE DISTRICT COURT OF APPEAL’S
DECISION IN THE INSTANT CASE IS IN DIRECT AND
EXPRESS CONFLICT WITH NEINER V. STATE, 875 SO.2D 699
(FLA. 4TH DCA 2004) OR RIVERA V. STATE, 561 SO.2D
536 (FLA. 1990)? (RESTATED)
1. Jurisdictional Criteria
Petitioner contends that this Court has jurisdiction pursuant to Fla.
R. App. P. 9.030(a)(2)(A)(iv), which parallels Article V, § 3(b)(3), Fla.
Const. The constitution provides:
The supreme court ... [m]ay review any decision of a district court
of appeal ... that expressly and directly conflicts with a decision
of another district court of appeal or of the supreme court on the
same question of law.
The conflict between decisions "must be express and direct" and "must
appear within the four corners of the majority decision." Reaves v. State,
485 So. 2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative
Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888, 889
(Fla. 1986) (rejected "inherent" or "implied" conflict; dismissed
petition). Neither the record, nor a concurring opinion, nor a dissenting
opinion can be used to establish jurisdiction. Reaves, 485 So. 2d at 830;
Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)(“regardless of whether
they are accompanied by a dissenting or concurring opinion”). Thus,
conflict cannot be based upon "unelaborated per curiam denials of relief,"
Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002).
In addition, it is the "conflict of decisions, not conflict of opinions
or reasons that supplies jurisdiction for review by certiorari." Jenkins,
4
385 So. 2d at 1359.
Thus, "this Court does not have jurisdiction to review per curiam
decisions of the district courts of appeal that merely affirm with
citations to cases not pending review in this Court," Persaud v. State, 838
So. 2d 527, 531-32 (Fla. 2003) (citing Dodi Publishing Co. v. Editorial
America, S.A., 385 So. 2d 1369 (Fla. 1980); Jollie v. State, 405 So. 2d 418
(Fla. 1981)).
A district court of appeal opinion that is devoid of facts contains no
holding that could conflict with another district court of appeal opinion:
[I]n those cases where the district court has not explicitly
identified a conflicting decision, it is necessary for the district
court to have included some facts in its decision so that the
question of law addressed by the district court in its decision can
be discerned by this Court.
Persaud, 838 So. 2d at 533.
In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958), this Court
explained:
It was never intended that the district courts of appeal should be
intermediate courts. The revision and modernization of the Florida
judicial system at the appellate level was prompted by the great
volume of cases reaching the Supreme Court and the consequent delay
in the administration of justice. The new article embodies
throughout its terms the idea of a Supreme Court which functions as a
supervisory body in the judicial system for the State, exercising
appellate power in certain specified areas essential to the
settlement of issues of public importance and the preservation of
uniformity of principle and practice, with review by the district
courts in most instances being final and absolute.
Accordingly, the determination of conflict jurisdiction distills to
whether the District Court's decision reached a result opposite that of the
court in Jain.
5
2. The decision below is not in "express and direct" conflict with
Neiner or Rivera.
Petitioner points only to a single sentence that appears in both Neiner
v. State, 875 So.2d 699 (Fla. 4th DCA 2004), and Rivera v. State, 561 So.2d
536 (Fla. 1990), as the basis for his alleged express and direct conflict
with the First District’s decision in this case. Notably, Petitioner does
not compare the facts of the instant case with either Neiner or Rivera.
Petitioner has therefore failed to carry his burden and show how the First
District reached a different result under similar facts, as is necessary
for a finding of an express and direct conflict. Moreover, Petitioner has
misapprehended the meaning of that sentence in both cases, for a proper
understanding illustrates that no express and direct conflict exists.
In Neiner, 875 So.2d 699, the defendant was tried for possession of
diazepam. While the defendant claimed she had a prescription for the
drugs, she was unable to produce the prescription for the time period in
which she obtained the drugs. Id. The defendant attempted to call an ex-
manager for her pharmacy to testify that the pharmacy destroyed
prescription records after five years, thereby explaining why she was
unable to produce the correct prescription which would exonerate her. Id.
at 699-700. The trial court excluded this evidence, but the Fourth
District reversed, noting that the pharmacy’s policy was relevant to
explain why she could not produce documents which would exonerate her.
Citing to language in Rivera that evidence which tends to establish a
reasonable doubt in any way must be admitted, the Fourth District held that
because the evidence was relevant to the defendant’s defense, it should
6
have been admitted.
In Rivera, 561 So.2d 536 at 539, the defendant complained that the
trial court prohibited him from introducing “reverse Williams Rule”
evidence. While this Court noted that evidence which tends in any way,
even indirectly, to establish a reasonable doubt must be admitted, this
Court added that such evidence must abide by the same principles of
relevancy that all other evidence must satisfy. Id. This Court then found
that the defendant’s proffered “reverse Williams Rule” evidence failed to
meet the standard for admission, and the trial court did not abuse its
discretion in excluding it. Id. at 540.
Thus, both Neiner and Rivera establish that the sentence at issue,
“[W]here evidence tends in any way, even indirectly, to establish a
reasonable doubt of defendant’s guilt, it is error to deny its admission,”
is nothing more than a restatement of the evidentiary rule that only
relevant evidence be admitted, and that relevant evidence is that which
tends to prove or disprove a material fact. See §90.401, Fla. Stat.; see
also §90.402, Fla. Stat. This rule is consistent with the prohibition on
collateral impeachment, which is impeachment for nothing more than its own
sake and not for any material fact. Griffin v. State, 827 So.2d 1098 (Fla.
1st DCA 2002). Therefore, collateral impeachment is necessarily irrelevant
and is inadmissible for that reason.
In the instant case, Petitioner attempted to engage in collateral
impeachment by questioning the victim of a sexual battery about the nature
of her clothing at the time she was raped. Anderson v. State, 133 So.3d
7
646, 647 (Fla. 1st DCA 2014). The victim stated she wore jogging clothes,
and Petitioner attempted to impeach her by presenting her clothes, which
Petitioner purported to be pajamas, to the jury. Id. The trial court and
the First District properly held this was an attempt to impeach on a
collateral matter, since even if the clothing actually were pajamas, such
contradiction “was not relevant to any issue in the case as it did not
reflect on Anderson’s guilt or innocence.” Id.
Because the evidence of the victim’s clothing was collateral, it was
not relevant, and therefore did not tend to establish a reasonable doubt as
to Petitioner’s guilt. Thus, the general maxim Petitioner relies on in
Neiner and Rivera is wholly consistent with the First District’s decision.
While evidence relevant to the defendant’s lack of guilt is admissible,
evidence which is merely collateral and irrelevant is not. Neiner and
Rivera do not say otherwise, and in no way provide a pathway to admitting
evidence of collateral matters that inherently fail the test of relevancy.
It is worth noting that Petitioner’s discussion of the facts of the
instant case relies almost entirely on facts not contained within the
district court’s opinion, in contravention of well-established law. Unlike
Petitioner’s jurisdictional brief, the opinion makes no mention of
Petitioner’s explanation during trial as to why the clothing might be
relevant, makes no mention of what issue was most important in the case,
nor does it mention whether the case was “he said/she said”. (PJB 5-6).
Petitioner’s impermissible reliance on facts outside the district court’s
opinion is reason enough to deny jurisdiction.
8
Petitioner has failed to demonstrate that an express and direct
conflict exists between the instant case and Neiner or Rivera. Petitioner
has not only failed to carry his burden of persuasion by providing the
requisite factual analysis of Neiner and Rivera, but such analysis actually
reveals that both decisions do not in any way conflict with that of the
instant case. Therefore, this Court lacks discretionary jurisdiction in
the instant case.
CONCLUSION
Based on the foregoing discussions, the State respectfully requests
this Honorable Court determine that it does not have jurisdiction.
9
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the following by
electronic mail on June 3, 2014: Michael Ufferman, Esq., at
CERTIFICATE OF COMPLIANCE
I certify that this brief was computer generated using Courier New 12
point font.
Respectfully submitted and certified,
PAMELA JO BONDI
ATTORNEY GENERAL
__Trisha Meggs Pate______
TRISHA MEGGS PATE
Tallahassee Bureau Chief,
Criminal Appeals
Florida Bar No. 0045489
___/s/ Jay Kubica_______
By: JAY KUBICA
Florida Bar No. 0026341
Office of the Attorney General
PL-01, The Capitol
Tallahassee, Fl 32399-1050
(850) 414-3300 (VOICE)
(850) 922-6674 (FAX)
L14-1-9839
Attorney for the State of Florida