AMENDED MOTION TO VACATE JUDGEMENT AND SENTENCE
COMES NOW, the Defendant, Phillip Kessler, Pro Se, pursuant to Florida Rule of Criminal Procedure 3.850 moves this Honorable Court for an order granting post conviction relief as follows:
Count 1-4: On or about <date>, Phillip M. Kessler did knowingly use a computer or online service, internet service, local bulleting board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure or entice a child or another person believed to be a child, to commit an illegal act as described in chapter 794 Florida Statutes, chapter 827 Florida Statutes, chapter 800 Florida Statutes to wit: lewd and lascivious battery, lewd and lascivious molestation, and or sexual battery; or otherwise engage in unlawful sexual conduct with a child or person believed to be a child, contrary to section 847.0135(3)(a), Florida Statutes.
3. The Honorable Judge Jackie Fulford Presided.
4. Defendant was represented by: Nathan Price, ESQ 553 E. Tennessee St. Tallahassee, FL. 32308
5. Defendant did testify on his own behalf.
7. On September 3, 2014 Defendant was sentenced to count one (1) to sixty (60) months Department of Corrections; count two (2) to twenty-four (24) months Department of Corrections and three (3) years of sex offender probation; count three (3) to five (5) years sex offender probation; count four (4) to five (5) years sex offender probation. Count one is consecutive to count two. Count three is consecutive to count two and count four is concurrent to count three. The Defendant submitted a timely motion for downward departure, with merits and it was denied by the trial court.
9. The First District Court of Appeal affirmed judgment on May 15, 2016 without opinion. Re-Hearing was requested with merits and denied on July 1, 2016.
11. This timely amended motion pursuant Florida Rule of Criminal Procedure 3.850 now follows:
DCA (May 27, 2015), Hamilton was charged with one count of Florida Statute 847.0135(3)(a) and one count of Florida Statute 934.215 "unlawful use of a 2-way communications device." He used his device to contact the victim over multiple days in 2012. However, the appeal court in that case pointed out that 847.013 5(3)(a) statute subsumes the conversation that lasted over several days and the 934.215 charge was unnecessary and/or double jeopardy.
cir. 1988). Generally the exclusionary rule has not been applied to violations of the posse Comitatus act; however, it may be applied where there are widespread or repeated violations. United States v. Wolffs. 594 F.2d 77, 86 (5
Cir. 1979). Furthermore, the exclusionary rule applies where the evidence was obtained through an unauthorized use of military authority.
DCA 2003). An officer acting outside of his jurisdiction, not in fresh pursuit, may not use his powers of his office to obtain evidence. Id. (Inv. Huston did not exercise Mutual aid.) While there are cases that allow an officer to investigate outside his jurisdiction if the underlying crime occurred with their jurisdiction, an officer may not utilize the power or color of his office to further any evidence to ferret out criminal activity. Id. The Florida Supreme Court also held "the purpose of this doctrine is to prevent officers from improperly asserting official authority to gather evidence. That evidence must be suppressed." Id. at 266. Furthermore, an arrest based on evidence by the unlawful show of authority is illegal and any fruits must be suppressed. Id.
DCA 1993) citing Munoz; See also Jacobson. "Inducement can be any government conduct creating a substantial risk that an otherwise law abiding citizen would commit an offense including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy of friendship." U.S. v. Davis. 36 F.3d 1424, 1430 (9
Cir. 1994). Furthermore, "[a]n 'inducement' consists of 'opportunity' plus something else - typically excessive pressure by the government upon the defendant of the government taking advantage of an 'alternative non-criminal type motive'. U.S. v. Gendron 18 F.3d 462, 468 (1
Cir. 1994). This defense prevents the government from preying on the weaknesses of an innocent party and enticing him into committing crimes he would not have otherwise committed. Jacobson at 553. On this issue, the accused has the burden of proving this factor by a preponderance of the evidence. Id.
Or. 1994). Although none of these five factors are control, the most important factors are 1, 2, and 4.
MEMORANDUM OF LAW
The Defendant affirmatively alleges that absent court and counsel errors, infra, the outcome of the pre-trial motions and ultimately the trial would have been different. To establish this claim a defendant must show (1) the counsel performance was deficient; (2) that the deficient performance prejudiced the defense. Strickland v. Washington 466 U.S. 688, 104 Ct. 2052, 80 L.Ed. 674 (1984).
The deficiency prong requires the defendant to establish conduct on the part of counsel that is outside the broad range of reasonableness under prevailing professional standards. Id. at 688. The prejudice prong requires the defendant to establish "reasonable probability" that but for the counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. The standard does not require a defendant to show counsel's deficient conduct more likely than not altered the outcome of his trial proceeding, but rather he must establish a probability sufficient to undermine confidence in the outcome. Parker v. State. 89 So.3d 844, 845 (Fla. 2011) (quoting Porter v. McCollum. U.S. 30130 S.Ct. 447, 445-446175 L.Ed.2d 398(2009)).
STATEMENT OF CASE
During the week of October 11, 2011, members of the Tallahassee Police Department (TPD) Interne Crimes against Children (ICAC); governed by the "Tally Op" Operational Plan (See Exhibit A), conducted an undercover operation targeting subject who were soliciting minors for sex over the internet. During the operation Investigator (Inv.) Russel Huston of the TPD utilized the Panama City, Florida Craigslist Casual Encounters adult website to target and lure potential child abusers.
DCA 2002)(Citation omitted). "It is the trail judge's duty to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences." Id. (Citation omitted.) The decision to grant or deny a judgment of acquittal is not one that calls for the exercise of judicial discretion. Id. Therefore, an appellate court reviews such a decision under the de novo standard. Id. A court should not grant a motion for judgment of acquittal unless the evidence, when viewed in a light most favorable to the state, fails to establish & prima facie case of guilt.
This particular website requires users to confirm they are over eighteen (18) years old prior to gaining access to the adult contents of this particular website. (See Exhibit B). Neither the State nor the TPD has provided any evidence that, at the time of the "Tally Op" operation, this section of Craigslist.com had been used by known child abusers to target minors.
On October 11, 2011 @ 3:11pm, Inv. Huston from the TPD posted an ad on the Panama City Craigslist Casual Encounters website. The title read, "Do U wanna b my 1??? -W4M-99"." NOTE: W4M means woman for a man. The age of 99 was used to bypass the website's age filters in order to create a "bait and switch" ad which is in violation of Craigslist's policy.
, 2013, and during the hearing, the state agreed that the Defendant was entitled to clarification on this point and the state identified three offenses that it contended the Defendant solicited the undercover officer to commit: lewd and lascivious battery, lewd and lascivious molestation, and lewd and lascivious conduct. (R2-236). In turn, the state filed an amended information alleging the specific offenses that it contended the Defendant committed. This was not a harmless error. On the first morning of the trial (after the jury had been selected), the state was permitted to amend the information (over objection) to add "sexual battery" as another substantive offense (R1-28; Tl-7-23). This too was not a harmless error. To establish sexual battery, the state would have been required to prove that "Amber" did not consent to sexual activity - an assertion that is not supported by the record in this case (T1 -16-19).
DCA 2013). In Pamblanco, the defendant was convicted of soliciting a person under the age of sixteen to commit lewd or lascivious conduct. See Id. At 20. In that case, a twelve year old girl's mother discovered that her daughter was text messaging the defendant, an adult male, and turned the phone over to a detective to continue communication. See Id. at 250. The defendant eventually sent multiple sexually explicit text messages to the undercover detective and made plans to meet with the "child". Id. At 250-251. The defendant in Pamblanco never followed through with his plan to meet up with a "child" but he ultimately was arrested because of his illicit communication. See Id. At 251. At trial, the court instructed the jury that it could find the defendant guilty of the charged offense it "(1) J.G. [the actual juvenile the defendant was originally messaging] was under sixteen years of age; (2) Pamblanco solicited J.G. or another person believed to J.G. to commit lewd or lascivious acts; (3) Pamblanco was eighteen years or older at the time of the offense." Id. The defendant was convicted based on the instruction. See Id. On appeal, the state contended that the actual age of the person solicited was irrelevant because of the defendant's subjective belief that he was soliciting a twelve year old. See Id. At 251-252. The state argued specifically that "solicitation", like attempt, is a crime which focuses on the defendant's "intent" and urged the Fifth District to find that the criminal act was complete as soon as the defendant asked the undercover detective to commit a crime. Id- The Fifth District disagreed with the state's argument, explaining that, regardless of the defendant's intent, the victim's actual age was an element of the charged offense. See Id. At 252. ("That the child's age is an element of the offense makes perfect sense because soliciting an adult to commit a lewd and lascivious act is not a crime in Florida.") To illustrate that the actual age of the victim, rather than the defendant's intent, was the essential element of the offense at issue in that case. The Pamblanco court drew a contrast between lewd and lascivious conduct and unlawful use of computer services, which does not ordinarily require proof that an actual child was involved. See Id. At 252.
At 3:26pm the Defendant replied in an email, "I don't have a face pic, so I hope this will do..." He sent a picture of a penis (not his) that he copied from another website. NOTE: this was the only nude picture sent (the Defendant did not know the age at this time).
Inv. Huston replied a short time later saying, "hey im real...im in tally... 14 years old.. .almost 15... if your stillcool lemme no."
The Defendant responded, "wow...your so young...how come you don't want to wait. I don't want to get in trouble. Do you have a pic to prove you are real and not the cops?" Inv. Huston responded, "I dnt wanna get in trouble 2...im not a cop lol...heres my pic." Attached was an age regressed photo of a female police officer.
On October 11, 2011, @ 7:18pm, The Defendant responded, "you are a cutie however you are way to young for me. As much as I'd like to possibly show you a good time, I just can't..." At 7:22pm Inv. Huston replied "Ok...sorry."
amended information, it was extremely harmful to the defense. The selection of "L&L" offenses made the charges more insidious and likely caused bias amongst the jurors as well as confusion. The jury unknowingly convicted the Defendant without knowing that each and every element was not proved. Denying the judgment of acquittal was not harmless error.
Over the next week, the Defendant and Inv. Huston exchanged emails, discussing when the defendant would come to Tallahassee. What sex acts the defendant would perform and the reason the defendant was hesitant to travel to Tallahassee from Panama City.
Ultimately, the Defendant did not travel to Tallahassee and broke off all communications on his own. NOTE: Inv. Huston attempted to persuade the Defendant to come to Tallahassee multiple times over a week's timeframe. The Defendant had many opportunities to travel but refused to go.
On October 19, 2011, a court order was issued specifically for the phone number the Defendant provided to Inv. Huston (TPD initiated the phone call). This was a TRACFONE and TPD could not detect and subscriber information on the device. However, after reviewing the header information in the Defendant's emails, Inv. Huston discovered the emails were being sent using a T-Mobile device. Then, without a court order for that specific T-Mobile device, TPD began using "other confidential electronic surveillance techniques" (per Inv. Huston's arrest report) to track the device to Tyndall Air Force Base near Panama City, Florida; over 100 miles away from Tallahassee.
Inv. Huston contacted Special Agent Nishioka of the Tyndall AFB Air Force Office of Special Investigations (AFOSI) and requested assistance in identifying a possible active duty or reserve member on Tyndall AFB. Agent Nishioka was given a picture of the Defendant. The picture was taken to the Tyndall AFB First Sergeants meeting where the Defendant was identified. (R2-258). Inv Huston then asked the AFOSI to conduct an interview. (R2-246).
On November 1, 2011, the Defendant was approached by his commanding officer on Tyndall AFB and was ordered to report to the AFOSI office on base. His First Sergeant escorted him. Upon his arrival at the AFOSI office, the Defendant was patted down and/or frisked by Agent Nishioka. His T-Mobile smart phone was seized. He was then placed in an interrogation room. The T-Mobile phone was turned over to Inv. Huston without prior knowledge or permission from the Defendant. The Defendant was never told he was allowed to leave and he was ordered to be there. The Defendant was detained in the interrogation room. Inv. Huston and Agent Chad Hoffman of the FDLE entered the interview room. Inv. Huston was wearing his TPD badge and TPD letterhead on all of his documentation to include the document used when the Defendant waived his Miranda Rights. Agent Chad Hoffman did not generate any reports nor did he have any knowledge of this specific case.
DCA 2003); Wilson V. State 403 So.2d 982 (Fla 1
After the TPD interrogation, AFOSI Agents Sara Winchester and Shane Nishioka questioned the Defendant. The Defendant was shortly thereafter place in handcuffs and taken to the Bay County Jail. Agent Nishioka made the arrest on a civilian out of county warrant. He was under the impression that because he is a civilian AFOSI Agent, he has blanket arrest authority on civilians and civilian warrants. (R2-251).
The Defendant bonded out of the Bay county Jail on a $2500 bail order from a Bay County Judge. The Defendant was charged with one (1) count of "Illegal use of a computer Service..." Florida Statute 847.0135(3)(a).
The Defendant was offered a plea deal (through counsel) by Assistant State Attorney (ASA) Christie Utt with a caveat stating that if the Defendant turned down the deal the state would add further charges.
Ms. Utt offered the Defendant, a first time offender, twenty-one (21) months in the Department of Corrections and five (5) years of sex offender probation. The Defendant declined the offer and Ms. Utt Subsequently charged the Defendant with four (4) identical charges.
A Motion to Suppress Evidence hearing was held on March 3, 2014. The defendant argued that the Tallahassee Police did not have jurisdiction to initiate an investigation in Panama City, Florida. Then, further ferret out information and make an arrest all outside of TPD jurisdictional limits. This was being done without knowledge of Bay County authorities. The defense also argued that the AFOSI did not have jurisdiction as stated in the Posse Comitatus Act and Department of Defense Policy. The defense presented Agent Hoffman of the FDLE who stated he had no involvement in the investigation of the Defendant except that he was present for the interrogation (R2-270-272).
DCA 1980). An officer acting outside his jurisdiction, not in fresh pursuit, may not use the powers of his office to obtain evidence. Phoenix. An officer may not utilize the power or color of his office to further any evidence to ferret out criminal activity. See Id. In Phoenix . the Florida Supreme Court held that "the purpose of this doctrine is to prevent officers from improperly asserting official authority to gather evidence not otherwise obtainable." Id. Thus, when officers unlawfully assert official authority, either expressly or implicitly, in order to gain evidence, the resulting evidence must be suppressed. See Id. at 266. Furthermore, an arrest based on evidence by the unlawful show of authority is also illegal and any fruits must be suppressed. Id
After arguments from both parties on whether Inv. Huston had jurisdiction to get the arrest warrant or to obtain evidence under the color of his office, the trial court reserved ruling until each side could have the opportunity to supplement the record with case law (R2-284). The State filed a supplemental response to the Defendant's Motion to Suppress Evidence, which referenced and cited to information in the "Tally Op" operation plan. However, this plan was not formally introduced to the court prior to the courts decision on the motion. The court denied the motion after the State's sole supplemental argument (JS-6).
A jury trial was commenced on March 12, 2014. During the charge conference, the State made an 8 amendment to the charge information under objection of the defense counsel (R1-28; T1-7-23). The change was accepted by the court. Also during the charge conference the court denied jury instruction for "Abandonment" although it had merit (T2-243).
, 2013, requesting the "Tally Op" plan from the state because of possible "exculpatory evidence". When the state attorney did not provide the document, the defense counsel failed to follow-up on it. The arguments above would have been included in the motion to suppress evidence if the "Tally Op" plan was provided in a timely manner.
Cir. 1978)(en banc)cert. de., 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793, 919, 79. See also Urquart v. State. 676 So.2d 64, 66 (1
During the trial and after the state rested, the defense submitted a Motion for Judgment of Acquittal, based on the state not being able to prove all elements in the charge information. The defense based its argument on Pamblanco v. State. 11 So.3d 249 (5th DC A 2013). Despite its merit and the State's inability to "prove each and every element" of the charge information, Greenwade v. State. 124 So.3d 215, 220 (Fla. 2013), the court denied the motion for Judgment of Acquittal.
The trial court instructed the jury (T2-285-298, 325-330) and the parties gave their closing arguments (T2-298-325). After being able to return home for the evening, the jury returned a verdict of guilty on all four (4) counts the next morning.
The Defendant was immediately remanded to the Leon County Jail despite a request for time to put his affairs in order and/or to attain an appellate bond. He remained there until he was sentenced to prison on September 3, 2014.
During the sentencing hearing, Dr. Gregory Prichard, Psychologist, (See Exhibit C) testified and stated that the defendant "stumbled" on the Craigslist ad and the investigation. However, despite Dr. Prichard's Expert merits, the Defendant's downward departure motion was denied without proper reasoning.
The Defendant has taken his argument to the First DCA. After oral arguments, the DC A affirmed the trial court's decision without opinion. They issued a mandate sending this case back to the Second Judicial Circuit on July 17
DEFENSE COUNSEL WAS PREJUDICIALLY INEFFECTIVE WHEN COUNSEL FAILED TO ARGUE DOUBLE JEOPARDY AFTER DEFENDANT WAS CHARGED/CONVICTED OF 4 IDENTICAL CHARGES STEMMING FROM 1 CRIMINAL EVENT.
MEMORANDUM OF LAW
The intent of legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not allow the principle of leniency as set forth in subsection (1) to determine legislative intent. Exceptions to the rule are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by a greater offense. Florida Statute 775.021(4)
The U.S. and Florida Constitutions contain double jeopardy clauses that "prohibit subjecting a person to multiple prosecutions, convictions and punishments for the same criminal offense." Valdez v. State. So.3d 1067, 1069 (Fla. 2009). Accordingly, "The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether legislature intended to authorize separate punishments for the crime(s)." Gordon v. State. 780 So.2d 17, 19 (Fla. 2001).
"Absent explicit statement of legislative intent to authorize separate punishment for crimes, application of Blockbureer v. U.S 284 U.S. 299. 52 S.Ct. 180, 76 L.Ed. 306 (1932), 'Same Elements' test pursuant section 775.021(4), Florida Statutes, is the sole method of determining whether multiple punishments are double jeopardy violations." Gaber v. State 684 So.2d 189, 192 (Fla 1996). NOTE: This "test" inquires whether each offense contains an element not contained in the others. If not, they are the same offense and double jeopardy principles prohibit separate convictions and punishments based on the same conduct.
The Defendant in this case was originally charged with one count of "unlawful use of a computer service..." in violation of section 847.0135(3)(a) Florida Statutes. In order to secure a conviction, the State must generally introduce evidence of the following:
1. The Defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data storage to contact "victim".
2. The victim was a child or person believed by the defendant to be a child
3. During the contact the defendant seduced, solicited, lured or enticed; attempted to seduce, solicit or lure victim.
However, The state amended the information to reflect four (4) identical charges of Florida Statute 847.0135(3)(a) and added elements to each charge that they must prove. This was done after the Defendant turned down a plea deal for one (1) charge.
In this case, there is only one (1) "victim", one (1) ad the Defendant responded to, one (1) email conversation stemming from one (1) online service. A single 847.0135(3)(a) charge covers all of those elements. To charge the Defendant four (4) identical times, the Defendant would have to have four (4) victims, responded to four different (4) ads, had four (4) email conversations with four (4) different victims and/or using four (4) different online services.
The State will undoubtedly point out that the email conversation stretched through multiple days and that each charge is different because they each reflect a different date. However, all the other elements remain the same. There is still only one victim; there was only one ad the defendant responded to, one email conversation between the Defendant and the "one victim" and one online service used to lure the Defendant. As the statue is written, the Defendant needs to commit all the elements in all four charges in order for the State to prove each and every element beyond a reasonable doubt to establish a "prima facie case." Greenwade v. State. 2013 WL 5641794 (Fla. 2013). It is impossible for the State to do this because there was only one singular offense of 847.0135(3)(a) committed.
In Hamilton v. State. 1D13-5380 1
In a Florida Supreme Court "Double Jeopardy" case (State v. Shelly 176 So.2d 3d 914 (Fla. 2015)), Mr. Shelly was convicted of Florida Statute 847.0135(3)(a) and 847.0135(3)(b), however, on his appeal the DCA ruled it double jeopardy. The decision was affirmed by the Supreme Court stating, "Based upon the plain language of section 847.0135, we hold that the legislature has not 'explicitly stated its intent' to authorize separate convictions and punishments for conduct that constitutes both solicitation under section (3)(b)." The same would be true for multiple counts of section (3)(a). Solicitation is covered in one count. Legislature did not specifically state the amount of time it took to solicit one victim nor do they state that each day the solicitation is ongoing constitutes a separate crime.
In the conclusion of State v. Shelly, the court stated, "Since 1 charge entirely assumes all charges, the charges are for the same purpose of the Blockburger elements in section 775.021(4) the second district properly vacated... the extra charges."
The Defendant asks this Honorable court to use sound reasoning and vacate the extra charges and re-sentence the Defendant on one charge per sentencing score sheet. The multiple counts violate the Defendants U.S. and Florida Constitutional rights. All elements of his criminal event are covered under one count of Florida Statute 847.0135(3)(a).
DEFENSE COUNSEL'S MISINTERPRETATION AND OMMISSION OF FEDERAL LAW ALLOWED UNLAWFULLY GAINED EVIDENCE TO BE USE DURING JURY TRIAL, PREJUDICIALLY AFFECTING THE OUTCOME OF SAID TRIAL VIOLATING THE DEFENDANT'S FIFTH AND FOURTEENTH U.S. CONSTITUTIONAL AMENDMENT RIGHTS.
MEMORANDUM OF LAW
The Posse Comitatus Act restricts the Department of Defense (DOD) from participating in civilian law enforcement activities. Title 10 section 375 United State Code restricts all personnel of the armed forces from directly participating in a search, seizure, arrest or other similar activity. The DOD has outlined what activities include direct participation in Department of Defense Instruction 3025.21 (1)(c). The instruction states that DOD personnel (civilian and military employees) are prohibited from directly assisting civilian law enforcement in effectuating a search or seizure and making an "arrest; apprehension; stop and frisk; engaging in interviews, interrogations, canvassing or question of potential witnesses or suspects; or similar activity." Id. A violation of this act occurs when military participation "pervades the activities of civilian officials thereby subjecting citizens to the regulatory exercise of military power." United States v. Bacon. 851 F.2d 1312, 1313 (11
In turn, Title 18 Section 1385 of the United States Code makes it unlawful for any civilian law enforcement officer to ask for and to gain assistance from the military (DOD) regarding civilian law enforcement matters. A violation of this law is punishable by up to two years in prison and/or a $ 10, 000 fine.
In this case, the AFOSI agents did not have the authority or jurisdiction to search for, arrest, frisk/search, or interview the Defendant because this was a civilian law enforcement matter. The TPD (Inv. Huston) conducted and investigation from Tallahassee (100+ miles away) which led them to the Air force base near Panama City, Florida. This incident had nothing to do with military functions and the AFOSI were not participants in the Tallahassee Police sting. The actions by the AFOSI agents directly violated DOD policy and Federal law that prohibits personnel from directly participating in civilian law enforcement activities. As a result, the arrest, search and interview of the defendant were in violation of the Posse Comitatus Act.
Special agent Shane Nishioka of the AFOSI was contacted by Inv. Huston of the TPD, who was requesting assistance in identifying the defendant on Tyndall AFB near Panama City, Florida (R2-258). Inv. Huston provided a picture to Agent Nishioka. The Defendant was later identified at a First Sergeants meeting on base. The defendant was later ordered by his commanding officer to report to the AFOSI office on base. Upon his arrival he was searched and then placed in a room where he was interrogated by Inv. Huston. The Defendant's vehicle was also searched by AFOSI agents on base. (A cell phone was confiscated and later given to Inv. Huston.) After that interrogation Agents Sara Winchester and Shane Nishioka interrogated the Defendant regarding the civilian case. After both interrogations were complete, Agent Nishioka placed the Defendant in handcuffs and escorted him to the Bay County Jail using a Leon County arrest warrant (R2-261, 262). All evidence, to include the recorded interrogation were given to Inv. Huston, along with a hard drive confiscated from a Classified/Secure work area on base.
Agent Nishioka testified that he made the arrest because he has civilian arrest authority as a civilian agent. This includes arrests using a civilian warrant. However, his assumption was false. The DOD and the U.S. code have clearly outlined what activities are prohibited by DOD employees. Agent Nishioka is a DOD employee, and exercised almost all of the prohibited activities outline in DODI 3025.21(1)(c) and under U.S. Code.
Inv. Huston Initiated and conducted an investigation over 100 miles outside of his jurisdiction. Generally, a police officer has no official power outside the boundaries of his or her jurisdiction. State v. Phoenix 428 So.2d 262, 265 (Fla. 1982) SEE State v. Sills 852 So.2d 390 (Fla. 4
Inv. Huston violated Federal Law (Title 18 Section 1385 U.S.C.) when he asked for assistance from the military to find the Defendant and allow himself a place to interrogate and gather evidence from the Defendant to which he would have not had access to. Also, Tyndall Air Force base is over 100 miles from Inv. Huston's jurisdiction. NOTE: Special Agent Chad Hoffman of the FDLE attended the interrogation with Inv. Huston. However Agent Hoffman testified that he did not write any report nor did he have any knowledge of this specific case. The interrogation was done solely under the flag of the TPD. All Paperwork reflected TPD letterhead.
The exclusionary rule (as mentioned before) applies and all evidence obtained as a result of the unlawful arrest, search and interview of the Defendant should have been suppressed. The Defendant was escorted to the interrogation on an Air Force Base by a superior. Once they arrived, the AFOSI agents searched him and sat him in a recorded interrogation room to be questioned by Inv. Huston. At no time did the AFOSI or Inv. Huston inform the Defendant he was allowed to leave. The Defendant was in his military uniform the whole time. Upon request from Inv. Huston, the AFOSI used their authority as air force personnel to gather information on Inv. Huston's city investigation. The mere presence of AFOSI agents combined with the Defendant being ordered to the interrogation room by his supervisors is enough to justify the exclusion of evidence gathered through the investigation where the military participated. But for the presence of military authority, the Defendant may not have waived his rights and answered questions without an attorney present. The Defendant was operating under the impression that he had to cooperate because of military presence and that he was following orders.
During the motion to suppress evidence hearing, the unlawful actions of Inv. Huston regarding Title 18 section 1385 of the U.S. Code was not brought up by neither the defense counsel nor the state attorneys. This was not a harmless error. The defendant did provide defense counsel with that information prior to the hearing but it was omitted.
Agent Nishioka was also not further questioned or scrutinized on the scope of his civilian authority. The law and regulations clearly state what he is not allowed to do in regards to civilian law enforcement. Agent Nishioka does have limited civilian arrest authority. As a civilian AFOSI agent (DOD employee) he is allowed to investigate and make arrests involving felony crimes by civilians on a federal installation and/or crimes against military members. His scope of responsibility involves crimes against the Air Force and its properties as well as counter terrorism. EXAMPLE: A civilian employed on a military base who is stealing military equipment or a civilian who commits a murder of a military member.
Therefore, all evidence gathered as a result of Inv. Huston investigating outside of his jurisdiction and with the assistance of AFOSI agents should have been suppressed and considered fruits of the poisonous tree. These fruits greatly affected the outcome of the trial, leading to the conviction of the Defendant by a jury.
The laws regarding this matter are clear. However, since Title 10 Section 1385 U.S.C. was omitted from the motion to suppress evidence, the entire argument regarding the Posse Comitatus Act was misinterpreted, ultimately leading to the denial of the motion.
The fact that the defense counsel did not scrutinize the AFOSI agent regarding the scope of his civilian arrest authority as well as failing to state the federal law Inv. Huston violated has proven to be prejudicial errors on the part of the defense counsel. The facts above fulfill both prongs of Strickland.
Because of the gathering of poisonous fruits, defense counsel's misinterpretation and omissions of law, ultimately leading to a conviction; this Honorable Court should suppress the evidence gained as a result of an unlawful gathering of evidence, and due to errors from the defense counsel and trial court. The Defendant also begs the Honorable Court to look at this case in a new light and re-hear or vacate the charges.
THE COURT PREJUDICIALLY ERRED BY ALLOWING THE DEFENDANT TO BE CONVICTED ALTHOUGH HE WAS ENTRAPPED AS A MATTER OF LAW
MEMORANDUM OF LAW
"Entrapment" is defined as "employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other that one who is ready to commit it." 777.201(1) Fla. Stat. (2012). The defense is meant to stop the government from "originate[ing] a criminal design, implant[ing] in an innocent persons mind the disposition to commit a criminal act, and then inducting] commission of the crime so that the government may prosecute." Jacobson v. U.S.. 503 U.S. 540, 548 (1992). In Florida, the Supreme Court has delineated two types of entrapment defenses: subjective and objective entrapment. Munoz v. State, 629 So.2d 90 (Fla. 1993). Florida codified the subjective entrapment defense as laid out by the U.S. Supreme Court, in Florida Statute section 777.201. See Munoz.
Subjective entrapment focuses on three different issues. First, the Defendant must prove by a preponderance of the evidence that the government agent induced the Defendant to commit the charged offense. After the Defendant has satisfied that burden, the burden shifts to the government to prove he had predisposition beyond a reasonable doubt. Id. Third, the court must determine whether the factual issues are in dispute and whether the defense should be submitted to jury.
The first consideration is whether an agent of the government induced the accused to commit the offense charged. Beattie v. State. 636 So.2d 744, 746 (Fla. 2
The second question is whether the accused was waiting for a propitious opportunity or was ready and willing, without persuasion, to commit the offense. Munoz at 90. At this stage, the Defendant initially has the burden to establish lack of predisposition. Id. As soon as the Defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt. Id. In rebutting the Defendant's evidence of lack of predisposition, the prosecution may make "an appropriate searching inquiry" into the conduct of the accused and present evidence of the accused prior history, even though such evidence normally is inadmissible. Id. In evaluating predisposition the court reviews five factors: (1) the character and reputation of the Defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the Defendant engaged in the activity for profit; (4) whether the Defendant showed any reluctance; and (5) the nature of the government's inducement. U.S. v. Davis. 36 F.3d 1424, 1430 (9
In Jacobson. the court found that the defendant was entrapped as a matter of law where the government used a sting operation to target the defendant with no known knowledge of predisposition. Jacobson v. U.S.. 503 U.S. 540 (1992). The court explained that evidence must demonstrate a predisposition beyond a reasonable doubt both prior to and independent of the government acts. Id. (emphasis added). "Where the government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first be approached by government agents." Id. Citing U.S. v. Whole 925 F.2d 1481, 1483-1484 (1991).
In the present case the undercover operation was not designed to target any particular individual with a known predisposition. The Defendant, in fact, had no criminal history. During trial, it was proven that prior to this incident, he only ever communicated with adults online. Also, the fact that the Defendant was on a website where you must verify you are over eighteen (18) years old, proves he was not looking for minors online and he is not predisposed to this kind of behavior. Instead, his lack of predisposition was demonstrated by his initial reluctance during the email conversation, his refusal to travel and his decision to break off communications on his own.
Law enforcement set up and posted a sexually explicit "bait and switch" ad (against Craigslist's policy) on a sexually charged adult website, bypassing the age filters by putting a false age. Law enforcement's failure to establish any parameters which would protect individuals who were not predisposed to seek out sexual encounter with minors and particular nature of the inducement employed in this case amount to a violation of the Defendant's rights as determined in Jacobson.
This analysis is reinforced by Cruz v State, in which the officers were neither seeking out a particular individual, nor were they aware of any past acts contributing to the defendant's "predisposition". The defendant was also found to have been entrapped as a matter of law. Cruz v. State 465 So.2d 516(Fla. 1985).
"The state must make a showing amounting to more than mere surmise and speculation the intent to commit the crime originated in the mind of the accused and not the police." State v. Casper 417 So.2d 263 at 265 (Fla. 1982). The present case was created in the mind of the police and was placed in a high risk area (an "adult" website). If the ad was not placed on the "adult" website, the Defendant would have never committed this crime.
Dr. Gregory Prichard, Psychologist, conducted a psychosexual analysis on the Defendant (See Exhibit C). In his report he states that the Defendant has no deviancies and that he "stumbled" on the craigslist ad and the investigation. (Exhibit C pg.8 par.3). He also concludes his written report by stating, "Mr. Kessler is not the kind of individual that clinicians consider a predator or serious threat for any kind of impropriety to society." In another Psychosexual analysis by Dr. Daniel Kitzerow, Psychologist, He agrees that there is very little evidence that the Defendant will seek out juveniles on the internet for the purpose of exchanging sexually oriented messages... (Exhibit D pg.11 par.4).
As this Honorable Court can plainly see, two independent practicing psychologists came to the same conclusion that the Defendant is no predisposed to this crime or any other criminal behavior.
The Defendant was not specifically "targeted". Law enforcement failed to investigate the Defendant's predisposition. Their operation was not narrowly targeted as required by law, in order to avoid the issue of entrapment.
The U.S. Supreme Court ruled that law enforcement can provide opportunities for the commission of crimes; however, government agents may not originate a criminal design, implant in an innocent person's mind the predisposition to commit a criminal act, and the induce commission of the crime so that the government may prosecute. W. As such in the case at hand, law enforcement reached out to the Defendant by posting an ad, with no mention of a minor, on a legitimate website with protections to provide and "only 18 or older" virtual environment. There would be no reason for an adult male, sexually predisposed to relations with minor females, to be drawn to this particular site used by law enforcement in this operation. The use of the website did not encourage a "narrowly targeted" source for their operation. Therefore, in this instance, law enforcement not only provided an opportunity, the inducement was magnified by placing the ad on a sexually charged adult website. They also continued to induce the Defendant to pursue the criminal act through online conversation and persuasions. Law enforcement furthermore violated his due process rights by failing to investigate predisposition prior to commencing the operation.
Lastly, the court must consider whether the entrapment should be submitted to a jury. Id. The issue should be submitted to a jury when the factual issues are in dispute or when a reasonable person could draw a difference in conclusions from the facts. Munoz v. State, 629 So.2d 90 at 100 (Ma. 1993).
The defendant in Munoz was the owner of "Video Den" and was charged with the sale and distribution of harmful materials to a person under the age of 18, also following a targeted operation by law enforcement. Munoz v. State, 629 So.2d 90 (Fla. 1993). (Emphasis added). The sting resulted in an anonymous complaint of such violation occurring at another adult store, completely unrelated to the Video Den. Id. There was no evidence given indicating that the Video Den engaged in related criminal conduct. Id. A minor was given a false membership card to present in order to rent x-rated videos from the section of the store clearly marked, "no person under the age of 18 allowed." Id. After renting to the same minor twice the defendant was arrested. Id. The court found the defendant entrapped as a matter of law. Id. The court described the circumstances as clear government inducement. Id. Therefore, this case should not have gone to a jury on the issue of entrapment.
Any reasonable court can plainly see the Defendant was entrapped. Therefore, the Defendant prays this Honorable Court will dismiss/vacate all charges.
THE COURT ERRED BY ALLOWING THIS CASE TO GOTO JURY WHEN THE SATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CHARGED INFORMATION VIOLATING THE DEFENDANT'S FIFTH AND FOURTEENTH U.S. CONTITUTIONAL AMENDMENT RIGHTS.
MEMORANDIM OF LAW
Generally, "[i]n moving for a judgment of acquittal, a defendant admits to only the facts stated in the evidence, but also admits every conclusion favorable to the state that the jury might fairly and reasonably infer from such evidence." Watkins v. State, 826 So.2d 471, 473 (Fla. 1
The Due process clauses of the federal and state constitutions require the state to prove guilt beyond a reasonable doubt. See U.S. Const. Amends. V and XIV; Art. I section 9 Fla. Const, in re Winship, 397 U.S. 358, 361(1970); Low v. State. 689 So.2d 1055, 1057 (Fla. 1997). The trial court erred by denying the Defendant's timely motion for judgment of acquittal. (R1-115; T2-224). As explained in the following, by selecting lewd and lascivious offenses the state intended to prove the Defendant solicited another person to commit, the state was required to prove that the "victim" was actually under the age of sixteen (16).
"The rule of law in Florida is clear that state is required to prove each and every element of the offense charged beyond a reasonable doubt to establish aprima facie case" Greenwade v. State 124 So.3d 215, 270 (Fla. 2013). (Citation omitted). "If the prosecution fails to meet the burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted." Id. (Citation omitted).
In the instant case the Defendant was charged with four (4) identical counts of "unlawful use of a computer service...", in violation of section 847.0135(3)(a), Florida Statutes. In order to secure a conviction the state must generally introduce evidence of the following:
1. The Defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data storage to contact "victim".
2. The victim was a child or person believed by the defendant to be a child
3. During the contact the defendant seduced, solicited, lured or enticed; attempted to seduce, solicit or lure victim to commit any illegal act described in chapter 794, chapter 800 or chapter 827, or to other wise engage in unlawful sexual contact with a person believed to be a minor.
See 847.0135(3)(a), Fla. Stat; Fla. Std. Jury Inst, (crim.) 11.17(a).
In this case, however, the Defendant filed a demand for a statement of particulars. (R1-78). The demand was directed at the third element of the charged offenses, and the defense asked the state to identify which specific offenses the Defendant solicited the undercover officer to commit. A hearing was held on the demand on November 26
Each of the selected offenses include the actual age of the victim - rather than the believed age of the victim - as a substantive element of the offense.
A defendant cannot solicit someone he merely believes to be a child to commit the offenses of lewd and lascivious battery, lewd and lascivious molestation and lewd and lascivious conduct. In order to prove that a defendant illegally solicited someone to commit one of these offenses, the state must prove that the victim was actually under the age of sixteen (16). See Pamblanco v. State 111 So.3d 249 (5
When the Pamblanco court distinguished sections 800.004(6) and 847.0135(3)(a), Florida Statutes, it was comparing the first element of lewd and lascivious conduct (that the victim was under the age of sixteen) to the second element of unlawful use of computer services (the victim was believed to be a child) in order to show that the legislature does not intend the age of the victim to be an element of an offense, it knows how to include language which eliminates the requirement that the state prove that an actual child was involved. See Id. at 252. What the Pamblanco court could not have foreseen, though was a situation where the state would voluntarily subject itself to the requirement of proving that the victim in a prosecution under 847.0135(3)(a) was an actual child by selecting "L&L" offenses as the offenses it intends to prove the defendant solicited another person to commit. This is to say that, ordinarily in prosecution under section 847.0135(3)(a), the state only needs to prove that the defendant used a computer service to contact a person he believed to be a child and that he solicited that person to engage in any unlawful sexual conduct. In this case, however the state should have never survived a motion for judgment of acquittal by demonstrating that the defendant solicited the victim to engage in general unlawful sexual conduct. Because of the amended information (in response to the demand for statement of particulars), the state should have only survived the motion for judgment of acquittal by demonstrating that the Defendant solicited the victim to commit lewd and lascivious battery, molestation and/or conduct - offenses for which the victim must actually be under the age of sixteen. In other words the state's selection of "L&L" offenses turned the third element of 847.0135(3)(a) into the exact offense at issue in Pamblanco - solicitation to commit lewd or lascivious acts. As explained by the Fifth District, "Soliciting an adult to commit a lewd or lascivious act is not a crime in Florida." Id. at 252. Accordingly, this court should find that the state introduced insufficient evidence to survive a motion for judgment of acquittal respecting the third element of each of the charged offenses.
When the court denied the Defendant's judgment of acquittal and later allowed the jury to hear the 8
Finally, in the amended information, the state limited itself to proceeding on a theory of prosecution that the defendant solicited a person believed to be a child "to commit any illegal act described in chapter 794, chapter 800 or chapter 827, Florida Statues to wit: lewd and lascivious battery, lewd and lascivious molestation, and lewd and lascivious conduct" (R1-26)(emphasis added). By specifically alleging that the defendant solicited the victim to "commit" an "L&L" offense, the state imposed a burden of introducing evidence that the Defendant solicited Inv. Huston to "commit" an illegal lewd and lascivious upon a person under the age of sixteen. There is no evidence in this case that the Defendant solicited Inv. Huston to commit a lewd act on anyone other than himself, the Defendant, who is an adult. Because the state responded to the demand for statement of particulars by indicating that it intended to prove that the illegal act the Defendant solicited the victim to "commit" was an offense or offenses against a person under sixteen years of age. The trial court should have granted a judgment of acquittal in this case. The information should have never been read to the jury nor should have any decision been rendered by them.
Accordingly, the trial court erred by allowing this case to be decided by a jury. All the elements in the charged information could not be proved. For this, the Defendant asks this Honorable Court to grant the Defendant's constitutional rights and vacate all charges.
DEFENSE COUNSEL AND THE COURT ERRED BY ALLOWING LAW ENFORCEMENT TO TRACK AND LOCATE DEFENDANT USING HIS MOBILE DEVICE WITHOUT A WARRANT FOR THAT SPECIFIC DEVICE.
MEMEORANDUM OF LAW
Article 1 and 12 of the Florida Constitution provides that a right of the people to be secure in their persons, houses, papers and effects against unreasonable search and seizure, and against private communications by any means, shall be violated.
To obtain records of stored electronic communications, such as subscribers name, address, length of subscription and other like data, the government must secure a warrant perusal to Fed. R. Crim. P. 41 or court order under U.S.C. Sect. 2703(d). Tracy v. State 152 So.2d 504 (Fla. 2014).
Florida Statute 934.23(4)(a) allows law enforcement officers to require a provider of a electronic communications service to disclose a record or other information pertaining to a subscriber not including the contents of a communication when the officer, inter alia, obtains a warrant or obtains the order for such disclosure by offering specific and articulable facts showing that there are reasonable grounds to believe the records of other information sought are relevant and material to the ongoing investigation.
In the instant case, a court order was issued for the phone number the Defendant provided the TPD on 11/18/11 (770-508-7029). This was a TRACFONE. There was no subscriber information available.
When the TPD could not geo-locate the defendant using the TRACFONE, Inv. Huston reviewed the header information in the Defendant's emails and discovered that the emails were being sent using a T-Mobile device. Then "using other confidential electronic surveillance techniques, "a potential location of Tyndall Air Force base in Panama City Florida was identified (Inv. Huston's arrest report).
The T-Mobile device was the Defendant's personal "smart phone" to which the TPD did not secure a court order or warrant to track its location. Only one warrant/court order was produced to the Defendant during a motion to suppress evidence hearing that was specifically for the TRACFONE.
The TPD did not have exigent reasoning to track the Defendant T-Mobile device without a warrant. Since the TPD had time to get a court order for the TRACFONE, they had time to get one for the T-Mobile device. "When determining exigency courts examine the totality of circumstance. One such circumstance is whether law enforcement had time to secure a warrant. If time to get a warrant exists, the enforcement agency must use that time to get a warrant." Herring v. State 168 So.3d 240 (1
The TPD had ample time to secure a court order for the T-Mobile phone due to the fact they took the time to secure a court order for the TRACFONE. Also, final communications were done with the Defendant on 10/19/2011 and the TPD secured the Defendant on an arrest warrant on 11/01/2011, ample time to secure a court order and locate the Defendant.
"Cell phones are 'effects' as the term is used in the U.S. Constitution Amend. IV. Cell phones, many of which are 'smart phones' are ubiquitous and are virtual extensions of many of the people using them for all manner of necessary personal matters." Tracy v. State 152 So.3d 504 (Fla. Oct. 2014).
For the reasons stated in the above argument(s) this Honorable Court should deem all statements and evidence gathered as a result of the unlawful search and seizure of the Defendants real time cell phone location details as fruit of the poisonous tree. All those evidence should be suppressed and/or the charges vacated.
THE COURT AND DEFENSE COUNSEL PREJUDICIALLY ERRED WHEN UNLAWFULLY GAINED EVIDENCE WAS USED IN TRIAL STEMMING FROM THE USE OF AN IMPROPERLY DISCOVERED DOCUMENT VIOLATING DEFENDANTS FIFTH AND FOURTEENTH U.S. CONSTITUTIONAL AMENDMENT RIGHTS DO DUE PROCESS
MEMORANDUM OF LAW
A city of Police officer generally has no official power to investigate or arrest outside of their jurisdiction. State v. Phoenix 428 So.2d 262, 265 (Fla. 1982). See State v. Sills. 853So.2d 390 (Fla 4
In the present case a Motion to Suppress evidence hearing was held. The court heard arguments from both parties whether Inv. Huston of the TPD had jurisdiction to investigate a crime, get an arrest warrant and obtain evidence 100+ miles outside of his jurisdiction.
The trial court reserved ruling on the issue until each side could have the opportunity to supplement the record with case law (R2-284). The state filed a supplemental response to the defendants motion to suppress, which referenced and cited to information in the "Tally Op" Operational Plan (R2-111-113)(Exhibit A). Upon this sole supplemental argument, the trial court ultimately denied the motion to suppress evidence (JS-6).
During appeal, A.A.G. Virginia Harris found that the "Tally Op" plan was not on record and found that it was not properly discovered by the trial court. Therefore, it could not be on any record during the DCA appeals process. The First DCA granted a motion to relinquish jurisdiction from the state back to the Second Judicial Circuit so that it could be determined whether or not the "Tally Op" was properly submitted to the court prior to the ruling on the motion to suppress evidence. The former trial judge Jackie Fulford indicated to AAG Harris that she could not specifically remember whether she had the plan or not. For this reason as well as not being able to find "Tally op" on record the trial court should have not denied the motion to suppress evidence on the sole supplemental argument regarding "Tally Op".
The "Tally Op" operation plan has exculpatory evidence in favor of the defendant. If the plan was properly discovered in a timely manner both parties would have been able to scrutinize its contents fairly rather than the state biasly exploiting the information at the most opportune time for them.
The Defendant, having worked closely with the military and law enforcement understands the need for officer safety. However the Defendant asks this Honorable Court to accept Exhibit A (Tally Op Operation Plan).
In the state's supplemental response to the Defendant's motion to suppress evidence, the state referenced the "Tally Op", arguing the TPD had jurisdiction to investigate a crime and make an arrest in the Panama City, Florida area because the TPD was working in conjunction with other local, state and federal law enforcement agencies under the umbrella of the Internet Crimes Against Children (ICAC) task force. However, upon looking at the "Tally Op" operational plan for this specific "sting", there were several law enforcement agencies listed as participants but there were no agencies listed from Bay County where the Defendant lived nor was the AFOSI listed (See Exhibit A pg.22). The reason they were not listed is because they were not in cooperation with this specific ICAC operation.
The "Tally Op" plan clearly reflects the TPD was out of its jurisdiction during the entire investigation. TPD's role was that of the primary agency (See Exhibit A pg.7 par.6). "For purposes of law enforcement activity, the rules of engagement will be standardized for all law enforcement agencies in the operation." (See Exhibit A pg.8 par.1) NOTE: Bay County law enforcement or the AFOSI were not in the operation.
"Criminal cases worked by 'chatters' from other jurisdictions will be assigned to the Tallahassee Police Department for follow-up and prosecution unless the suspect did not travel. In this case the individual chatter will be responsible for follow-up." (See Exhibit A pg.13 par.7) There were no Bay County or AFOSI chatters. The chatter (Inv. Huston) was a TPD officer and did not have jurisdiction to follow-up. The Defendant did not travel; therefore the responsibility for follow-up was the Bay County Sherriff, who was not involved in the operation. "The case agency conducting final prosecution and investigative follow-up by the chatter of origin." (Exhibit A pg.18 par.3) Additionally, "Tally Op" states, "Investigators will be tasked with assisting out of area investigators with the necessary information so the proper jurisdiction can conduct consensual searches and search warrants outside the jurisdiction of Leon County." (See Exhibit A pg.13 par.3).
As this Honorable can plainly see, there was a plan in place for "out of Jurisdiction" investigations of "non-travelers". Inv. Huston failed to follow the established operational plan and took it upon himself to continue his own investigation outside of his jurisdiction and under the color of the TPD. He did not include the Bay County Sheriff nor did he exercise "mutual aid" (as stated by Inv. Huston in the motion to suppress evidence hearing). His entire investigation, starting with an ad placed on the Panama City Florida Craigslist Casual Encounters website, was done outside of his jurisdiction (100+ miles from Tallahassee). The Bay County Sheriff was completely unaware of Inv. Huston's Investigation.
The Defendant's counsel submitted a motion to compel discovery (Exhibit F) on October 28
Due to the jurisdictional case law and the factual assumption that the trial court denied the Defendant's motion to suppress evidence based on the sole supplemental argument from the state regarding "Tally Op", this Honorable court must re-hear this case.
DEFENSE COUNSEL PREJUDICIALLY ERRED WHEN THEY FAILED TO DISCLOSE EXCULPATORY PSYCHOLOGICAL ANALYSIS'TO THE JURY
MEMORANDUM OF LAW
In review, Strickland provides two prongs. The Defendant must show (1) the counsel's performance was deficient; (2) the deficient performance prejudiced the defense.
In the instant case a psychosexual analysis was performed on the Defendant prior to trial. The analysis was provided to the defense counsel by the Defendant. However, the analysis was never used nor was any expert called to testify on behalf of the analysis during trial.
In November 2011, just after the Defendant was arrested and charged with a crime, he volunteered himself to a psychosexual evaluation (See Exhibit D). Dr. Daniel Kitzerow, Psychologist performed the evaluation. Dr. Kitzerow concluded that the Defendant has a very low recidivism rate and "that his charge has been reduced to on that is not sexual in nature and his offense includes no images of juveniles and no physical contact with a child..." (Exhibit D pg. 11 par.4) Dr. Kitzerow also stated, "There is very little evidence that he will seek out juveniles on the internet for the purpose of exchanging sexually-oriented text messages." (Exhibit D pg.11 par.4) NOTE: The Defendant was on an adult, over eighteen years of age website.
After trial and before sentencing the Defendant volunteered himself to another psychosexual analysis by a separate psychologist. In June 2014, Dr. Gregory Prichard performed the analysis and confirmed the analysis of D. Kitzerow. Dr. Prichard also added that the Defendant has no deviancies, he's not a danger to society and he "stumbled" onto the craigslist ad and the investigation (See Exhibit C pg.8 par.3). Dr. Prichard also stated that the defendant is not any type of sexual predator. He concluded his written analysis by stating, "Mr. Kessler is not the kind of individual that the clinician considers a predator or a serious threat for any kind of propriety in society."
The Defense counsel erred by not using Dr. Kitzerow's analysis in the jury trial. It was also error by not having psychological testimony from an expert. This was not harmless.
The state's evidence only proved that the Defendant only ever communicated with adults online prior to this fluke incident. Those same adult emails wtefc used to destroy the Defendant's character, despite it only proving Dr. Kitzerow's and Dr. Prichard's analyses that the Defendant does not seek out minors online.
The information reflected in both psychological evaluations shew the true character and behavior of the Defendant and would have been a strong rebuttal to the state's assassination of the Defendant's character in front of the jury.
The Defendant's constitutional due process rights have been violated and the above argument meets both prongs of Strickland. Any reasonable court would rule in favor of the Defendant. At this present time the Defendant asks this Honorable Court for a new-hearing on this matter.
THE DEFENDANT'S CONVICTION AND SENTENCE WERE OBTAINED IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AS WELL AS ARTICLE I SECTION NINE AND SIXTEEN OF THE FLORIDA CONSTITUTION WHERE THE CUMULATIVE EFFECT OF COUSELS ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
MEMEORANDUM OF LAW
As his final contention, the defendant asserts that his trial counsel's errors cumulatively prejudiced the outcome of the trial.
If counsel is charged with multiple errors at trial, absence of prejudice is not established by demonstrating that no single error considered alone significantly impaired the defense. Prejudice may result from the cumulative impact of multiple deficiencies. Cooper v. Fitzharris. 586 F.2d 1325, 1333 (9
Defendant contends that each of his trial counsel's errors and omissions alone are sufficient to warrant relief in this case. However, when taken in the aggregate, these errors demonstrate that the Defendant has been deprived of the effective assistance of counsel guaranteed by the State and Federal constitutions. The Defendant has no prior criminal history and is not predisposed to the behavior he was convicted of. He was identically charged four times for a singular criminal event; allowing the State to insure a conviction. He was also accused of criminal elements that are impossible for the state to prove. Elements to which are extremely prejudicial because it created a strong bias amongst jury members during trial.
The prejudicial effect of the multiplicity of errors and omissions of the counsel and the trial court is manifest. In addition the deficiencies in the issues reflected during the investigation and prosecution of the case that lend support to the Defendant's assertion that he is entitled to post conviction relief. The record in this case is permeated with egregious errors as well as glaring omissions in the Defendant's trial representation. The Defendant is therefore entitled to post conviction relief.
Based on all of the issues in this motion or the cumulative thereof and the Defendant being able to meet both prongs of Strickland multiple times, the Defendant respectfully requests this Honorable Court to use sound reasoning and to reverse his conviction, vacate, remand for a new trail or in the alternative, order an evidentiary hearing specifying the grounds to be heard, and appoint counsel for the defense. WHEREFORE, the Defendant requests the following relief:
1. Vacate the judgment and sentence(s)
2. An evidentiary hearing
3. Appointment of a conflict-free counsel
4. Such other relief as the court deems just and proper
UNNOTORIZED CERTIFICATE OF OATH
Under penalty of perjury, I certify that I have read this motion, or that it has been read to me. I understand its contents and all the facts stated herein are true and correct. I certify that I understand English or, if I cannot understand English, that I understand that I have the motion translated completely into a language that I understand, that this motion is filed in good faith and with reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court.
Phillip Kessler #N28544, Pro Se Calhoun Correctional Institution 19562 S.E. Institution Drive Blountstown, Fl. 32424