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IN IRE DISTRICT COURT OF APPEAL FOR THE FIFTH DISTRICT STATE OF FLORIDA

DCA NO.: 5Dll-2357 CASEY !v1ARlE ANTHONY,
Petitioner,
VS.

STATE OF FLORIDA Respondent,

ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIA!. CIRCUIT IN AND FOR ORANGE COUNTY

INITIAL BRIEF OF APPELLANT .T. CHENEY MASON, ESQ. Florida Bar No.: 131982 J. Cheney Mason, P .A. 390 North Orange Avenue Suite 2100 Orlando, Florida 32801 Telephone: 407-843-5785 Facsimile: 407-422-6858 and LISABETH FRYER, ESQ. Florida Bar No.: 89035 390 N011h Orange Avenue Suite 2] 00 Orlando, Florida 32801 Telephone: 407 -426-2333 Facsimile: 407-422-6858

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TABLE OF CONTENTS Table of Contents ,

i-ii .. . u-iv 1 2-10 ," , 10- t 1

. l' a bl eo fC'itations Preliminary Statement Statement of Case and Facts Summary of the Arguments Arguments Point One

THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING DEfENDANT'S VARlOUS MOTIONS AND OBJECTIONS TO THE ADMISSIBILITY OF DEfENDANT'S STATEMENTS TO LAW ENFORCEMENT, AS THOSE STATEMENTS WERE NOT MADE
VOLUNTARILY Sl)PPRESSED
1\. Standard of Review

AND

S1JOULD

HA VE

BEEN l1
, , .1 1-12

,

B. Argument on the Merits Point Two

12-18

THE APPELLANT'S CONSTITUTIONAL DOUBLE JEOPARDY RIGHTS WERE VIOLATED WHEN SHE WAS CONVICTED OF FOUR SEPARATE COUNTS OF PROVIDING FALSE INFORMATION TO A LAW ENFORCEMENT OFFICER BECAUSE EACH COUNT STEMMED FROM THE SA~lE SINGLE OFFENSE \VHERE THERE WAS NO I3REAK IN THE TEMPORAL ASPECT OF THE CRlME 18
A. Standard of Review B. Argument on the Merits 18

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Point Three THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S REQUEST TO REQUIRE A FINDING OF MATERlALlTY IN fLORlDA STATUTE § 837.055 21 A. Standard of Review B. Argument on the Merits Conclusion Certificate of Service Certificate of Compliance , 21 21-22 22 23 24

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TABLE OF CITAT[ONS

Page Number U.S. Constitution U.S. Canst. amend. V Florida Constitution Fla. Consi. art. I, §9 Cases
Benjamin v. State, 77 So. 3d 781 (Fla. Burke v. State, 475 So. 2d 252 (Fla.
4th

,

.J 2, 15, 18

,

12, 18

DCA 2011)

18 20 12 21 19 ' 20 18 13, 14,17
13, 16. 17,

5111

DCA 1985)

Conner v. State. 803 So. 2d 598, 608 (Fla. 20(1) Gonzales Hammel State, 948 So. 2d 892 (Fla. 5th DCA 2007) Slate, 934 So. 2d 634 (Fla. 2d DCA 2006)

v.

v.

Hoag v. Stare, 511 So. 2d 401 (Fla.
LT

s" DCA

1987)

v. State, 69 So. 3d 1014 (Fla. 3d DCA 201 1)

Miranda v. Arizona, 384 U.S. 436 (J966) Ramirez v. State, 739 So. 2d 568 (Fla. 1999)
State v. Ellis, 722 So. 2d 824 (ria. 1st DCA 1997)

22 22

Slate v. Deese, 495 So. 2d 286 (Fla. 2d DCA 1986)
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Williams v. State) 757 So. 2d 597 (Fla. Florida Statutes Fla. Stat. § 837.055

s" DCA 2007)

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PRELIMINARY

STATEMENT

The letter '~R" shall refer to the Record on Appeal page number with "T' representing any transcript page numbers from the trial. The Appellant will be referred as the Appellant.

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STATEMENT

OF THE CASE AND FACTS

The Appellant, CASEY ANTHONY, was charged for the offenses of First Degree Murder (Capital), Aggravated Child Abuse, Aggravated Manslaughter of a Child, and four counts of Providing False Information to a Law Enforcement Officer During an Investigation by indictment on June 10, 2010. Jury selection

began on May 9, 2011 and the trial commenced on May 24, 2011. Pre-trial, defense counsel filed a Motion to Suppress Statements
January 3, 2011 CR. 6617-19) and an Amended Motion to Suppress Statements on

February 16,2011 (R. 7089-91). A hearing was held on the Motions March 2 through 7, 2011. (R. 20571-21026). During the hearing, evidence was presented

that asserted that the Appellant was arrested, placed in handcuffs, and placed in the back of a patrol car by a law enforcement officer who stated that the reason for the arrest was possible child abuse. (R. 20642). Conflicting evidence stated that that the Appellant was handcuffed for approximately five minutes. (R. 20707-08). The Appellant was in the back of the patrol car for approximately thirty minutes to an

hour. (R. 20643). The arresting officer was instructed to remove the Appellant's handcuffs and told that Detective Melich wanted to speak with the Appellant. (R. 20680-81). At no time was the Appellant informed of her Miranda rights. (R. 20682-83). Subsequent to being handcuffed and placed in the cage the patrol car,

law enforcement elicited the statements In question in Counts Four, Five, Six, and 2

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Seven of the Indictment. (R. 20710). The Lower Court entered an Order Denying Motion to Suppress Statements Made to Law Enforcement Officers on March 18,

2011. (R. 14391-405). Defense counsel for the Appellant filed a Motion for Rehearing on Orders Denying Motions to Suppress on March 24,2011. (R. 1475462). The Lower
COUlt

entered an Order Denying Motion for A Rehearing on

Orders Denying Motions to Suppress on March 25, 2011. (R. 14764-65). At trial, both the; defense and the State presented evidence. In relevant part, the trial testimony is as follows: I. TRIAL TESTIMONY DEFENSE WITNESS; RY AN EBERLIN: Officer Ryan Eberlin is a member of the Orange County Sheriffs Office.
(T.

1529). Officer Eberlin was dispatched to the Appellant's

residence on

July 15,2008 in his capacity as a law enforcement officer and while there, he placed the Appellant in handcuffs. (T. 1529-30). This occurred before the Appellant's written or oral statements.

Cr. 1544). Subsequently, he removed the

handcuffs from the Appellant at the instruction of Sergeant Reginald Hosey. (T. 1530). The Appellant was not Mirandized.

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On cross-examination,

the State sought to illicit the reason for placing

the cuffs on the Appellant and, on defense objection, the following conversation was had: Mr. Mason: That's a clear 403 violation. Ms. Drane-Burdick: Then you shouldn't have asked the question.

The Court: The problem, Mr. Mason, is you asked the question. Mr. Mason: About handcuffing, not arresting. The Court: But you don't put handcuffs on folks unless you arrest them. Mr. Mason: You ruled exactly the contrary in my motion to suppress.

CT.

1532-33).
STATE WITNESSES:

CORPORAL RENllON FLETCHER:
Corporal Fletcher, an employee of the Orange County Sheriff's Office, was the first individual to arrive at the Appellant's home just after 10:00 p.m. on July 14,2008 (T. 574). Corporal Fletcher was dispatched to the residence as a result of a call from the Appellant's mother, who reported a stolen vehicle and arrived at the residence in full uniform and a marked vehicle. (T. 575-77). Corporal Fletcher relayed that the Appellant, after questioning, stated that her

daughter was missing, in the custody of a nanny, and that the Appellant was conducting her own search. (T. 579). Corporal Fletcher drove his patrol car and 4

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Officer Acevedo drove a separate marked patrol car with the Appellant to the last stated address of the "nanny." (1. 580-81). OFFICER ADRIANA ACEVEDO: Officer Acevedo was second to arrive at the scene.

cr. 596).

Soon

thereafter, Sargent Reginald Hosey arrived. (T. 596-97). At the direction of Sgt. Hosey, Officer Acevedo escorted the Appellant to the last stated location of the "nanny." (1. 597). On cross-examination, Officer Acevedo explained that she was

at the Appellant's residence for two hours before escorting the Appellant to the location in the cage of her patrol car. (T. 602). LIEUTENANT REGINALD HOSEY: On cross-examination, then Sargent, now Lieutenant Hosey testified

that there were three marked patrol cars at the residence and that the three law enforcement officers present were all uniformed and outfitted with guns and tasers. (T. 618). Additionally, after being escorted to the Sawgrass Apartments in the cage of Officer Acevedo's car, the Appellant was led back into her residence by fully uniformed, armed deputies (T. 623-33). The Appellant was taken into the home and kept at the residence by an unknown number of deputies until Deputy Melich arrived approximately two hours later. (1. 624). Sargent Hosey stated that he had no memory of instructing Officer Ryan Eberlin to remove handcuffs from the

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Appellant. When asked "And you weren't going to let anybody leave, were you?" Lieutenant Hosey responded, "1 can't say that 1 wouldn't have." (T. 625).

DETECTIVE YURJ MELleH:
Detective Melich arrived at the Appellant's residence between 3 :00 and 4:00 in the morning on July 16, 2008. (1. 639). Law enforcement officers had been present in the Appellant's home for over five hours at that point. The State

moved a hand written statement into evidence and the defense renewed its objections first raised in the pretrial motions and hearing. (T. 643). Noting all previous objections, the lower
COUli

overruled the objection. (1. 643). The State

also moved a recorded statement by the Appellant into evidence. The defense renewed its objections first raised in the pretrial motions and hearing. (T. 647). Noting all previous objections, the lower court overruled the objection. (T. 647). The recorded statement by the Appellant stated that she worked at Universal Studios (1. 652), Zenaida Fernandez-Gonzales was Caylee Anthony's babysitter

(T. 650), and that the Appellant informed Jeffery Hopkins and Juliette Lewis of the disappearance of her child (T. 660-62). This statement was twenty minutes long and occurred at 4: I 1am. On cross-examination, Detective Melich stated that the Appellant had

not been Mirandized before being questioned or adopting her previously written statement. (T. 696-97).

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L.EONARD TURTORA:
Mr. Turtora is the assistant manager of loss prevention at Universal Studios in Orlando. (T. 727). Mr. Turtora assisted Detective Melich in his investigation in this matter as it related to the Appellant's statements. (T. 728). On cross-examination . Mr. Turtora verified that at the time Detective Melich had the Appellant transported to Universal Studios by two law enforcement officers, the Detective had already been informed that she was not an employee of Universal.
(T. 736).

DETECTIVE YURI MELICR:
Detective Melich took the stand once again and the State approached the clerk in order to enter a DVD of the interrogation of the Appellant that occurred at Universal Studios.

Cr. 745-47). The defense renewed the previous

motion to suppress and asserted additionally that Mr. Turtora was acting as an agent of the State when he assisted in verifying information and escorted the Appellant and law enforcement into the facility and into a small room used for the interrogation. (1'. 745-47). The lower court overruled the objection. (T. 747). Detective Melich testi fied that he dropped the Appellant off at her residence at approximately 6:00 in the morning and ordered two detectives to pick her up and transport her to Universal Studios at 9:30 a.m. arrived at the Appellant's residence at approximately]
7

CT. 748). The first officer

0:00 the night before. (1.

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574). When asked whether the Appellant agreed to come to Universal Studios, Detective Melich replied "To the best of my recollection, she did. I don't recall her saying about, no, I don't want to go or 1 refuse to go. Nothing like that." (1. 75253). The Appellant was escorted to Universal Studios by Detectives Wells and Appling. (T. 753). Both detectives were dressed in "shin, tie, badge, gun." ('I'.
753). After the Appellant confessed what Detective Melich already knew (that she

was not employed at Universal Studios, No one named Jeffery Hopkins or Juliette Lewis was employed at Universal Studios, there was no Zenaida FernandezGonzales at the stated address or ever employed at Universal Studios), he stated " ... Mr. Tutora found a small room in that same building that we could use ... and he allowed us to use it so we can further question Ms. Anthony." (T. 759). The State then published the DVD recording of the Appellant's interrogation.

Cr. 768-844). The appellant was not Mirandized before the

interrogation. During the interrogation, Detective Melich, Sgt. Wells, and Detective Appling confronted the Appellant with evidence against her and interrogated her as to her knowledge of the disappearance of her daughter. (T. 768844). On cross-examination,
il

Detective Melich stated, "1 confronted her several

times in the interview ... (T. 857). At the close of the State's case on June 15,2011, defense counsel

moved for a judgment of acquittal based on, in pertinent pan, on the constitutional 8

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deficiency in Fla. Stat. 837.055 because there is no requirement of materiality as is the standard in every other similar type statute (perjury, false information to a law enforcement officer) and the lack of the voluntariness of the Appellant's statements in light of the custodial interrogation and lack of necessary Miranda warning. (T. 1337-39). The lower court denied the motion without addressing the issues raised as to Counts four, five, six, and seven. (T.1361-69). During the charge conference on July 3, 201 ] , defense counsel objected to the standard jury instructions in this matter as lacking in a materiality component. (T.1947-48; 2004-05; 1957-58). The lower got overruled the objection. (T.1947-48; 2004-05; 1957-58).
On July 5, 2011, the Appellant was acquitted on the charges of First

Degree Murder, Aggravated Child Abuse, and Aggravated Manslaughter of a Child. (T. 19945-51). The jury returned a verdict of guilty on the four counts of Lying to a Law Enforcement Officer During an investigation. (T. 19945-51).

Before sentencing, defense counsel filed a Motion to Vacate/Set Aside Based on Double Jeopardy and a hearing was held (R. 19976-77), The lower court denied the motion and the Appellant was sentenced to one year in the Orange County Jail to run consecutive for each count with credit for 1043 days time served, a $] ,000.00 fine for each of the four convictions, court costs, cost of prosecution, and cost of

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investigation. (R, 19963-67). The Appellant filed her Notice of Appeal on July 15, 2011. (R. 19991-92). SUMMARY OF THE ARGUMENTS There are three points on appeal. First, the lower court erred in denying the Appellant's motion to suppress her statements to Detective Melich. The record establishes that the Appellant was placed under arrest, never Mirandized, and subsequently interrogated. Either the statements occurred at the Appellant's residence or Universal Studios. At both locations, the Appellant was in custody. At her residence, the Appellant was unhandcuffed and questioned to purposely avoid informing her of her Miranda rights. At Universal Studios, the Appellant was in custody, placed in a small room for questioning by three members oflaw enforcement, confronted with evidence against her for an extended period of time, and never informed of her rights under Miranda. In either scenario, the Appellant's statements were involuntary and, therefore, the lower court erred in denying the Appellant's motion to suppress. Second, the lower court erred in denying the Appellant's motion to vacate/set aside sentence based on double jeopardy, All the statements in the indictment arose out of the same occurrence; the interrogation
by Detective Yurt

Melich. Because there was no temporal break in the Appellants statements which would have allowed the ability to form new intent, the lower court erred in
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sentencing the Appellant for each statement. As such, the Appellant must be resentenced for one criminal act only. Third, Florida Statute§ 837.055, without the clement of materiality, is unconstitutional. As a preliminary issue, there are no published opinions

addressing Florida Statute § 837.055. However, any interpretation of the statute which does not require materiality is void for vagueness, Because the lower court denied the defense's request to include materiality as an element in the statute, the Appellant should be awarded a new trial as to this matter.

POINT ONE
I.

THE LOV/ER COURT ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS STATEMENTS TO LA W ENFORCEMENT OFFICERS BECAUSE THE APPELLANT WAS ARRESTED AND IN CUSTODY, BUT NEVER APPRISED OF HER MIRANDA RlGHTS BEFORE BEING SUBJECT TO INTERROGATION

A.

Standard of Review

The standard of review in evaluating a motion to suppress is a two-part process. Appellate courts "should ... accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues

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arising in the context of the Fourth and Fifth Amendment and, by extension, article 1, section 9 of the Florida Constitution." 2001 ). Additionally, "[iJn order for a court to conclude that a suspect was in
Conner v. State, 803 So. 2d 598,608

(Fla.

custody, it must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police. Jd. at 605 (citing Voorhees v.
State, 699 So.2d 602, 608 (Fla. 1997); Florida S.Ct. 2382,115 LEd.2d 389 (1991».
v.

Bostick, 501 U.S. 429,439,

111

B.

Argument on the Merits

It is undisputed that the Appellant

was handcuffed and placed in the cage of

a marked police vehicle by a law enforcement officer before being questioned by Detective Yuri Melich. (R. 14392). It is also undisputed that, at all times after the arrival of law enforcement at the Appellant's residence, the Appellant was never

less than ten to twelve feet from an armed, uniformed law enforcement officer. (R. 20708). Additionally, it is undisputed that the Appellant was escorted to Universal

Studios by law enforcement officers, placed in a small room, and confronted with evidence against her. (R 14391-405). After an extensive hearing on the 12

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suppression issue, the lower court entered an Order Denying Motion to Suppress Statements Made to Law Enforcement Officers. (R. 14391-407). Custodial interrogation requires that law enforcement advise an individual of their rights under Miranda
v.

Arizona, 384 U.S. 436 (1966). As stated in the lower

court's Order, in determining whether an individual is "in custody" for Miranda purposes, "[tjhe proper inquiry is not the unarticulated plan of the police but rather how a reasonable person in the suspect's position would perceive the situation." (citing Ramirez v. State, 739 So. 2d 568,573 (Fla. 1999). Ramirez articulated a four-part test to determine whether a reasonable individual in the suspects shoes would consider herself free to leave under the circumstances: l ) the manner in

which the suspect is summoned for questioning; 2) the purpose, place, and manner of the interrogation; 3) the extent to which the suspect is confronted with evidence of guilt; and 4) whether the suspect is informed that they are free encounter and leave. ld. There were two episodes of interrogation at issue in the present case, however) the Appellant was subject to continual custody, as the Appellant was only outside the presence of law enforcement for a short window of time and was at all times the subject of an investigation. First, the Appellant was interrogated by Detective Melich at her residence. Second, the Appellant was interrogated by
to

end the

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Detective Melicb at Universal Studios in a IOXl 0 room with the assistance of two additional law enforcement officers. In the first instance, Officer Eberlin handcuffed the Appellant and placed her in the cage of the car for the stated crime of "fraudulent usc ofa credit card and stolen credit card," The Appellant was under arrest. (R. 20700). The Appellant was not, thereafter "unarrested."
(See Williams v. State, 757 So. 2d 597 (Fla.
5111

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2007) finding that one cannot be unarrested for purposes of speedy trial and that one may be in custody for purposes of Miranda even though they not be formally under arrest.) The arresting officer was directed unhandcuff the Appellant and to conduct a missing person investigation. The Appellant's subsequent written

statement was made with the assistance and in the presence of the arresting officer and without proper Miranda warnings. (R. 20695-96). Under Williams, one cannot be «unarrested." ld. Although Williams address an arrest in the context of speedy trial, the principle applies with full force in the context of custody for Miranda purposes, as the speedy trial standard is more stringent than that of custodial interrogation.ld. When one is removed from their

home, placed in handcuffs in response to a complaint, and placed in the cage of a police vehicle an arrest has been effectuated .. Under Williams, an arrest is effectuated when:

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0) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the

person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought. or an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.
Jd. at 599 (quoting Melton v. State, 75 So. 2d 291,294

(Fla. 1954».

In the present case, the arresting officer had actual authority to effect the
arrest, as he was a deputy with the Orange County Sheriff's office; the Appellant

was actually seized, handcuffed, removed from her home, and placed in a marked patrol car; Deputy Eberlin stated his purpose for arresting the Appellant was fraudulent credit card charges; and the officer's actions in handcuffing and removing the Appellant from her home manifested a clear intention of arrest. Under Williams, the Appellant was arrested. Further, at all times after the Appellant was arrested, up to and including the interrogation by Detective Melich, she remained in the presence of law enforcement. (R. 20708). "Arresting a Defendant, only to unarrest them while

continuing to interrogate and control the boundaries of that individual is clearly an attempt to skirt alerting the indi vid ual of their Fi fth Amendmen
t

rights." (R.

14754-62). (It should be noted that during this episode the Appellant did not make
any statement related to Count Seven of the Indictment). Because the Appellant

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was arrested, was at all times in the continued presence of law enforcement, and at no time would a reasonable person feel free to leave, the lower court erred in denying the defense motion to suppress her statements arising from Detective Melich's first interrogation. The Appellant was further interrogated at Universal Studios in a lOX 10 room, twenty miles from her home; by three armed law enforcement officers, and confronted with evidence against her. The lower court erred in determining that the statements from this episode were not subject to suppression. The Appellant was picked from her home by two law enforcement officers and transported to Universal Studios. (T. 748). At the time the Appellant was transported, Detective Melich had already determined that her statements were not truthful. (T. 759). However, the Appellant was taken into a small office at Universal Studios and, behind closed doors; she was confronted with evidence against her. (T. 768-844). The lower court concedes that the "it is true that the Defendant was confronted regarding her lies to the detectives, she was not accused of a serious crime, such as murder." (R. 14402). Those statements that were the basis of the confrontation by law enforcement are now the basis of the Appellant's conviction and present appeal. The third part of the Ramirez test is not whether the Appellant was only confronted evidence with the most serious crimes, but whether she was confronted with evidence of guilt. The lower court concedes that she was. 16

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In applying Ramirez, the Appellant was summoned for questioning by transport with law enforcement officers twenty miles away from home; the purpose of the interrogation was to confront the Appellant with evidence of her lies; during the entire span of the encounter the Appellant was confronted with evi dence of her guilt; and at no time was the Appellant informed she was frec to end the encounter. Under Ramirez's four-part test, the Appellant was in custody and subject to custodial interrogation for purposes of Miranda. Ramirez, 739 So. 2d at 573. Further, the lower court erroneously analyzed the issue of "custodial interrogation" from the perspective of law enforcement rather than the perspective of a reasonable person in the Appellant'S position. In address defense counsel's assertion that the interrogating law enforcement officers angrily confronted the Appellant with evidence of guilt against her, the lower court stated" ... while it is true that the detectives seemed to become frustrated with the Defendant for leading them on a 'wild goose chase,' ... [i]t is clear that this frustration emanated from the detectives' desire to find Caylee and over the wasted time investigating bad information given to them by the Defendant." (R. 14402). Speculation as to the detectives' motivation for raising their voices when confronting the Appellant is

irrelevant. Rather, the intimidating tones weigh in favor of a custodial
interrogation, further, any statements made to Detective Melich during the

Universal Studios interrogation cannot be said to impede the investigation, as the 17

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Detective was aware of the falsity of the statements, (See L. T v. State, 69 So. 3d 1014 (Fla. 3d DCA 2011) holding that the defendant could not be charged with giving false information to a law enforcement officer because the officer knew of the falsity of the statement almost immediately upon encountering him), Based on the foregoing, the lower court erred in denying the defense motion to suppress statements to law enforcement officers. Further, any ruling that upholds law enforcement's actions in this matter (arresting a suspect and then "unarresting"

them for the sole purpose of interrogating them) creates a blueprint for law enforcement to engage in a custodial interrogation while skirting the Miranda requirement.
POINTT\VO

n. THE APPELLANrS CONSTITUTIONAL DOUBLE JEOPARDY RIGHTS WERE VIOLATED WI-lEN SHE ViAS CONVICTED Of FOUR SEPARATE COUNTS Of PROVIDING FALSE INFORMA TION TO A LAW ENfORCEMENT OFfICER BECAUSE EACH COUNT STEL",flvlED FROM THE SAME SINGLE OFFENSE WHERE Tl'iERE WAS NO BREAK IN THE TEMPORAL ASPECT OF THE CRlME
A. "The Fifth Amendment Standard of Review

'protects against multiple punishments for the same the

offense, Because double jeopardy issues involve purely legal determinations, standard of review is de novo. See Trotter
v,

State, 825 So. 2d 362, 365
4th

(Fla.2002)," Benjamin v. State, 77 So. 3d 781,783 (Fla.

DCA 201 I).

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13. Argument

on the Merits

"[Njor shall any person be subject for the same offense to be twice put in jeopardy of life or limb .... guarantees " U.S. Const. amend. V. Additionally, the Florida [or the same to

Constitution offense."

no person shall "be twice put in jeopardy

Fla. Const. art. I, §9. This constitutional that individuals

right has been interpreted from multiple

include the principle convictions

are given "protection

and punishments

for the same offense arising out of a single episode."

Hamme! v. State, 934 So. 2d 634,635 (Fla. 2d DCA 2006). In the present case, defense counsel asserted that the Appellant's multiple convictions should be

vacated or set aside and the Appellant §837.05S.

should be sentenced

to count under Fla. Stat.

CR.

19976-77;

20554-559).

The lower court denied the motion and the

Appellant was sentenced

on all four counts. was charged with multiple counts of using a argued

In Hammel, the defendant computer

to seduce a child to commit illegal acts. ld. at 635. Mr. Hammel with the police officer were all part of one ongoing and temporal

his conversations

criminal act aspects of the

with one single intent. The court looked at the "spatial crimes, a court can ascertain form a new criminal 'whether the defendant the occurrences."

had time to pause, reflect, and Id. Two counts In Hammel

intent between

were based on a single conversation the court conel udcd the con versation

that spanned a two day period. ld. As a result, was not considered 19 to be a separate event

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constituting new criminal intent because there was no "temporal break in the
conversation or a change in circumstances to warrant separate charges." ld. at

636 (emphasis added). In the present case, the Indictment charges four counts of

lying to a law enforcement officer during a missing person investigation on June 16,2008. The interrogation which led to the charges occurred during a continuous

interrogation. Neither the necessary temporal break, nor a change in circumstance occurred which would justify separate charges. As such, the lower court erred in sentencing the Appellant on all four statements. Further, the court in Burke v. State, 475 So. 2d 252 (Fla.

s" DCA

1985)

came to a similar conclusion in holding that a defendant could not be charged with three separate counts of uttering when the charges arose from an event that happened at one time and place and under the same cir cumstanccs.Zc" at 253. In Hoag v. State, 511 So. 2d 401 (Fla. 5th DCA 1987), this Court found that double jeopardy was violated when Hoag was charged with five counts of leaving the scene of an accident with injuries. This Court reasoned that even though Haag's actions resulted in injuries of four separate individuals and the death of a

fifth, his accident constituted one single offense, thus making him eligible for only
one count ofleaving a scene of an accident with injuries. Id. at 402.

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In the present case, the lower court erred in focusing its analysis on the consequences of each false statement, as opposed to circumstances under which the false statements were given. (R. at 20557-559). The Appellant provided all the

statements to the officer during the same interview and never had time to pause, reflect and form new criminal intent between occurrences.
(R. at 20554). Based

on the foregoing, the Appellant respectfully request that this Court vacate counts five, six, and seven of the indictment and resentence the Appellant in conformity with both the federal and state constitutions with regard to double jeopardy.
POINT THREE

III.

THE LOWER COURT COMMITTED REVERS1BLE ERROR IN DENYING DEFENDANT'S REQUEST TO REQUIRE A FINDING Of MATERlALITY IN FLOIUDA STATUTE § 837.055
A. Standard

or Review

"A trial court decision on the constitutionality of a state statute presents an issue oflaw that is reviewed by the de novo standard of review ... [t]here is a strong presumption in the law that a state statute is constitutionally valid. Gonzales v. State, 948 So. 2d 892 (Fla. 5th DCA 2007) (internal citations omitted). B. Argument on the Merits Currently, there are no published opinions regarding florida Statute §837.055. However, this statute is located under perjury in Florida Statute Chapter 837, the
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perjury requirement of materiality should be applied to this statute. Florida Statutes
Perjury Chapter defines a material matter to mean, "any subject, regardless of its

admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a However, Stale v. Ellis, 722 So.

question of law." Fla. Stat. §837.011(3) (2010).

2d 824 (Fla. 1st DCA 1997) recognized that Florida cases acknowledge materiality is an element of perjury and, as such the issue of materiality should be submitted to the jury. Likewise, the statute in question requires an element of material ity or the statute is rendered "so vague that it fails to give adequate notice of what conduct is prohibited and it invites arbitrary and discriminatory enforcement."
495 So. 2d 286 (Fla. 2d DCA 1986). Stale v. Deese,

In the present case, defense counsel objected to the standard jury instructions in this matter as lacking in a materiality component. (T.194 7-48; 2004-05; 1957-58). The lower got overruled the objection. (T.1947-48; 2004-05; 1957-58), However, because- the lack of materiality would create an unconstitutionally vague statute

and the issue was never submitted to the jury, the Appellant respectfully requests a new trial on this matter.

CONCLUSION

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11. 2012

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The lower court erred in denying the Appellant's Motion to Suppress. The Appellant requests that this Honorable Court reverse the lower
COUI1'S

decision on

this matter. Additionally, the lower court erred in denying the Appellant's Motion to Vacate/Set Aside Convictions Based on Double Jeopardy. The Appellant requests that this Court vacate/set aside: her convictions on charges five, six and seven as violative of double jeopardy. Finally. the lower court erred in denying the defense request that materiality be a required element of Florida Statute § 837.055. Based on this error, the Appellant respectfully requests a new trial.

ciHE~Q:Florida Bar No.: 131982
1. Cheney Mason, P.A.

-

390 North Orange Avenue Suite 2100 Orlando, Florida 32801 Telephone: 407-843-5785 Facsimile: 407-422-6858
and

LISABETH FRYER
Florida Bar No.: 89035 390 North Orange Avenue Suite 2100 Orlando, Florida 32801 Telephone: 407-426-2333 Facsimile: 407-422-6858 A ttorneys for the Appellant

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CERTIFICATE

OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this petition was furnished to the Office of the Attorney Genera], 44 Seabrceze Boulevard, Suite 50, Daytona Beach, Florida32118, thisJJ_ day ofJune,201t; ~.~ Lis~et'~{fry~'

14

CERTIFICATE

OF COMPLIANCE

I HEREBY CERTIFY that this petition complies with the font requirements of Rule 9.100(1) of the Florida Rules of Appellate ProceduJ")

usabeth

?cr6

~/~

JtfY yer

,--F-

24

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