State v. Fernandez
| Decision Date | 21 May 2014 |
| Docket Number | Case No. 2D13-2998 |
| Parties | STATE OF FLORIDA, Petitioner, v. JONATHAN FERNANDEZ; JEFFERY CANTU; MICHEL GONZALEZ; DAMICELA RIQUENE-CEBALLO; CAMILO ALVAREZ ACOSTA; SANTIAGO CABRERA; YUSNEL ALMARALES; DIEGO HERNANDEZ; DAGNERIS BALDESPINO; BENIGNO RODRIGUEZ; RAIDEN ACOSTA; ANDINO LOYOLA-HERNANDEZ; PHILLIP VARELA; ANTONIO ROSARIO; MARIO LAPIDO; DANIEL KIM COTTEN, a/k/a DANIEL COTTON; FRANCISCO LOZANO; WARREN KEENE; ALEXANDER PRIETO; EDWIN FERNANDEZ; ALEXEI DAVIDSON; and CHRISTOPHER LOZANO, Respondents. |
| Court | Florida District Court of Appeals |
MOTION AND, IF FILED, DETERMINED
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Lisa
Tampa, for Respondent Warren Keene.
Darlene Calzon Barror, Tampa, for
Respondent Camilo Alvarez Acosta.
Brian E. Gonzalez of Law Office of
Brian E. Gonzalez, P.A., Tampa, for
Respondent Alexei Davidson.
Mary Jennifer Arena of Law Offices of
Cynthia Lakeman, P.A., Tampa, for
Respondent Diego Hernandez.
The State seeks review by certiorari of the trial court's order requiring disclosure of (1) the identities and statements of cooperating defendants in the underlying criminal prosecution and in related cases, and (2) the redacted transcript of a proffer statement made by a single individual who has been charged in a related case. We grant the petition in part, and we deny it part.
In the underlying prosecution, case number 10-CF-009043, the State charged twenty-eight individuals1 with a variety of offenses relating to the trafficking ofcocaine and marijuana, money laundering, racketeering, and conspiracy. Law enforcement officers apparently used search warrants and extensive wire-tapping in their investigation of the alleged offenses. Several of the defendants in the underlying prosecution either filed or joined in motions to compel the State to disclose certain information. These defendants sought the disclosure of the identities of and the statements made by all codefendants and confidential informants in case number 10-CF-009043 and related cases, including the statements of codefendants who had cooperated with the State during its investigation. The defendants requested this information without regard to whether or not the State intended to call these persons as witnesses at trial. In the order under review, the trial court ordered the State to make the requested disclosures in substantial part and reserved ruling on a portion of the defense request.
The defendants, Jonathan Fernandez and Warren Keene, filed the four defense motions that are pertinent to our consideration of this case. In addition, the State filed a motion in opposition to the defense requests. Listed in chronological order, the pertinent motions are as follows:
1. Fernandez: "Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency, or Preferential Treatment and Impeaching Information," dated April 12, 2012.
2. Keene: "Adoption of Fernandez' Motion to Compel Disclosure and Memorandum of Law—Disclosure Specific to Keene," filed January 16, 2013.
3. Fernandez: "Motion to Compel," dated March 6, 2013.
4. State: "Motion to Declare Confidentiality of Court Records and Motion for Protective Order," dated April 18, 2013.
5. Fernandez: "Motion to Disclose Identity of Confidential Informants and Cooperating Co-Defendants," dated May 3, 2013.
The parties inform us that several of the codefendants in the underlying prosecution have either adopted or joined in one or more of the motions filed on behalf of Mr. Fernandez and Mr. Keene.
On February 5, 2013, the State responded to the Fernandez motion of April 12, 2012, "Motion to Compel Disclosure of Existence and Substance of Promises." The State's response addresses, paragraph by paragraph, each of the defense requests in the Fernandez motion. The requests by the defendants and corresponding responses by the State pertinent to the issues in this case are as follows:
7. Any and all consideration or promises of consideration given to or on behalf of the witnesses or expected or hoped for by the witnesses.
Answer: None, except for matters not subject to disclosure under Fla. R. Crim. P. 3.220(g)(2).
. . . .
9. Whether the witness has testified before any Court, Grand Jury or other tribunal or body . . . or otherwise narrated any facts regarding Defendants or this investigation . . . .
Answer: One or more Defendants in the [Hillsborough Circuit Criminal Case Numbers 10-CF-0009043], 10-CF-014101, and 10-CF-014110 have submitted to a debriefing after being arrested and represented by counsel. Any debriefings related to the facts and circumstances relevant to this case were made in confidence and under an agreement of use immunity.
The State also provided a "Tenth Amended Notice of Discovery and Additional Witness List in Response to Defendants' Motion to Compel Disclosure [etc]." This notice lists the twenty-eight persons charged in case number 10-CF-009043 (the underlying prosecution), two persons charged in case number 10-CF-009032, two persons charged in case number 10-CF-014110, and two persons charged in case number 10-CF-014101. In the notice, the State says that these are all of the persons who may have relevant information, but that it does not necessarily intend to call all of them as witnesses at trial.
The State also includes in its notice the names of five additional "Defendants/witnesses" that it suggests the State may call as witnesses at trial. The "Defendants/witnesses" listed include the following: two persons who were charged in case number 10-CF-009032; one person who was charged in case number 10-CF-014110; one person who was charged in case number 10-CF-014101; and one person who is the only codefendant named as a potential witness for the State who was charged in case number 10-CF-009043, the underlying prosecution.
In response to the request for written or recorded statements by any person whose name has been furnished, the prosecution responded that certain depositions had been taken by the Office of the Public Defender in case number 10-CF-014101, but that the State was not aware of any transcripts that resulted from the depositions. Notably, the prosecution further responded to this request as follows:
The undersigned is aware of statements of one or more Defendants/witnesses under [Florida Rule of Criminal Procedure 3.220(b(1)(A)], other than discovery already provided. However, the undersigned is unaware of any statements of any such Defendant/witness subject to disclosure under Fla. R. Crim. P. 3.220, as those statementswhich have not been provided in discovery were either: (1) unrelated to the facts and circumstances of the captioned case, (2) related to ongoing investigations or intelligence gathering regarding unrelated cases or investigations, or (3) made during debriefing sessions of Defendants/witnesses, not identified as State witnesses, above, and made under a promise of immunity or confidentiality of such statements until such time as the Defendant/witness agrees to be identified as a witness in the case.
(Emphasis added). In the trial court, the defense challenged the prosecution's refusal to disclose the statements purportedly made to it "under a promise of immunity or confidentiality . . . until such time as the Defendant/witness agrees to be identified as a witness in the case."
Comments appearing in the transcript of the hearing in the trial court suggest that the three men named as defendants in case numbers CF-10-009032 and 10-CF-014110 have entered pleas with the expectation of cooperating with the State. In addition, we glean from the hearing transcript that the case file for the two men charged in case number 10-CF-009032 had been sealed by a circuit judge, but the circuit judge whose order is the subject of this petition ordered or intended to order that the case file be reopened.2
On March 20, 2013, the trial court conducted a hearing on the first two defense motions, i.e., Mr. Fernandez's motion of April 12, 2012, and Mr. Keene's "adoption" of the Fernandez motion. After that hearing, the trial court ordered the State to provide the requested information to the court for an in camera inspection. Inresponse, the State provided a single transcript of the debriefing of a single individual ("Mr. X"), who had been charged in a separate "but connected" case.
The trial court conducted a follow-up hearing on May 10, 2013. Before that hearing, the remaining three motions referenced above were filed. After the follow-up hearing, the trial court entered the order that is under review.
The trial court's order comprises three distinct rulings. First, with regard to the motions that sought to compel the identity of the cooperating defendants and their statements, the trial court granted the defendants' motions and ordered the State to disclose any written or recorded statements as well as the substance of any oral statements made by any codefendant. Second, with regard to the transcript of the debriefing of Mr. X, the trial court decided that the transcript was relevant to the underlying prosecution. For this reason, the trial court ruled that the transcript was discoverable under Florida Rule of Criminal Procedure 3.220(b)(1)(D) (). However, the trial court also permitted the State to redact from the transcript references to "unrelated matters," pagination, and the name of the court reporting service. Third, with regard to the State's motion...
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