Filing # 120103452 E-Filed 01/22/2021 04:17:43 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, CASENO. —18-001958CF10A v. NIKOLAS JACOB CRUZ, JUDGE: ELIZABETH SCHERER Defendant. STATE’S MOTION FOR PRE-TRIAL RULING ON ADMISSIBILITY OF RELEVANT EVIDENCE (HAND-ETCHED SWASTIKAS) (SR-109) The State of Florida, by and through the undersigned counsel, pursuant to Florida Statute 90.402, Admissibility of Relevant Evidence, respectfully files the instant Motion for a Pre-Trial Ruling on Admissibility of Evidence, to-wit: (1) a firearm magazine hand- etched with swastikas on each side of the magazine located in the AR-1S firearm used in the shooting and left at the scene; (2) the boots wom by the Defendant when he was arrested approximately an hour and twenty minutes after the shooting began which has a hhand-etched swastika on the right boot; and (3) the identification by Jameson Todd (‘IT’) Snead of the firearm magazine hand-etched with swastikas on both sides as belonging to the Defendant. As grounds therefore, the State would show as follows: FACTS 1, On Wednesday, February 14, 2018, law enforcement responded to an “active shooter” at Marjory Stoneman Douglas (MSD) High School located at 5901 NW Pine #6 FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/22/2021 04:15:05 PM.*#**Island Road in Parkland, Florida, The shooting scene primarily was in the 1200 building, commonly referred to as the “Freshman Building”. Video surveillance within the 1200 building showed that the shooter wore the casual dress uniform of the JROTC program, a maroon collared shirt with the insignia of “JROTC”, and black pants, The shooter was also wearing eyeglasses, baseball style hat, and boots. ‘The shootings began at 2:21 P.M. and ended at 2:27 P.M,, at which time the shooter abandoned the AR-15 firearm on the third-floor west stairwell in the 1200 building adjacent to the bodies of Jamie Guttenberg and Peter Wang. The Defendant then fled in a southwesterly direction. The video clearly depicts the shooter dropping the murder weapon, Police recovered the AR-15 firearm and discovered that the firearm magazine which was inserted into the weapon was hand- etched with swastikas on both sides of the magazine. See exhibit A. The Defendant was arrested approximately 74 minutes after the shooting ended at 3:41 P.M., not far from the school, When arrested, the Defendant was wearing a maroon collared shirt with the insignia of “JROTC”, black pants, baseball style hat, eyeglasses, and boots. The Defendant's right boot had a swastika design hand-etched into it. See exhibit B. 2. The Defendant in this case was formerly a JROTC student at Marjory Stoneman Douglas High Schoo! and owned a maroon collared shirt with the initials JROTC. The day of this incident, JROTC students at the schoo! usually were wearing ofa “dress uniforms” or a “casual dress uniform”. The casual dress uniform con maroon collared shirt with the “JROTC” insignia and black pants. The Defendant wore a JROTC casual dress uniform on the day of the shooting in an obvious attempt to blend in with the student body. As such, distinguishing the Defendant from other students inattendance on February 14, 2018 is crucial to establishing the Defendant's identity as the shooter. 3. At the time of the shooting, the Defendant resided at the home of James and Kimberly Snead, located at 7200 Loxahatchee Road, Parkland, Florida 33067. While living at the Snead residence, the Defendant was permitted to keep his arsenal of firearms secured in a safe, including, but not limited to, the AR-15 murder weapon. Jameson Todd (“JT”) Snead, the biological son of James and Kimberly Snead, was a close and personal friend of the Defendant. JT Snead had observed the Defendant in possession of fan AR-1S firearm and firearm magazine with hand-etched swastikas during their cohabitation. On December 11, 2020, a photograph of the firearm magazine with hand- etched swastikas found at the scene of the massacre was positively identified by JT Snead as belonging to the Defendant. JT Snead subsequently provided a sworn statement to Detective John Curcio memorializing the identification. See exhibit C. 4. The AR-15 firearm and magazine with hand-etched swastikas was left behind by the shooter wearing the JROTC casual dress uniform. ‘The shooter’s abandonment of the AR-1S firearm and magazine and collection of same by law enforcement, was captured on video. Firearm identification analysis further confirmed the AR-1S firearm collected at the scene was used during the shooting massacre. MEMORANDUM OF LAW It is axiomatic that “[alll relevant evidence is admissible, except as provided by law.” § 90.402, Fla, Stat. (2020). “Relevant evidence is [defined as] evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat, (2020). Section 90.403, FloridaStatutes (2020), establishes a limitation on the introduction of relevant evidence: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Carter v State, 23 So.3d 1238, 1243 (Fla. 4th DCA. 2009). Evidence is relevant to prove identity, Identity is an element that must be proven by the State. Thomas v, State, 494 So. 2d 298, 251 (Fla. 4th DCA 1986). The simple fact that evidence may be prejudicial does not make it inadmissible, nor violate due process. Prevedello v Cate, 2015 WL3887007, at 18 (C.D, Cal. April 21, 2015) (citing Holley v. Yarborough, 568 F. 34 1091, 1101 (9th Cir, 2009), ‘The Supreme Court of Florida has approved the admission of a “swastika” and other hate symbols under circumstances that were considerably more prejudicial than presented here. In Asay v, State, $80 So.2d 610 (Fla. 1991), the defendant was charged with two counts of first-degree murder. Both victims were of African American descent. The State introduced the following statement made by Asay just prior to the murders, 18.” Evidence was also “(you know you ain't got to take no s-+t from these f-ing n-~ presented that Asay verbally attacked one of the victims. In response the victim stated to the defendant, “Don't put your finger in my face,” Asay responded by saying “ =k you, nr,” pulled his gun from his back pocket, and shot the victim once in the abdomen. Upon fleeing the scene of the shooting, Asay was asked why he shot the victim. Asay replied, “Because you got to show a n-——-r who is boss.” Once ii carcerated Asay admitted to his cellmate he committed the murders. More specifically, the defendant stated, “I shot them n-—rs.” In addition to hisadmission, Asay showed his cellmate his tattoos, which included a swastika, the words “white pride,” and the initials “SWP”, /d. at 612. The cellmate testified “SWP” stood for supreme white power. Asay raised on direct appeal to the Florida Supreme Court that the trial court erred by allowing the State to introduce racially prejudicial evidence at the trial. The Supreme Court rejected the defendant's argument and affirmed the conviction. Id See also Asay v. Sec’y, Fla. Dep’t of Corr., No. 3:05-CV-147-J-32PDB, 2014 WL 1463990, at 3 (M.D. Fla. Apr. 14, 2014) (The motion (for ineffectiveness assistance of counsel) seeks to show that Mr. David was ineffective because he was unable to prevent the issue of race or racial hostility from being an issue at the trial, Collateral counsel {failed to make any showing whatsoever that any attorney, no matter how skilled, would have had any way of keeping the issue of race or racial hostility from being brought out in this trial, The defendant made statements to witnesses which were extremely probative and relevant (0 the issue of premeditation. Part and parcel of this evidence were statements dealing with racial motivation for these killings. The State was entitled to have them admitted, and their admission was affirmed on direct appeal. Collateral counsel {failed to show any method that could have been used to prevent these statements from being admitted, so the burden of proof is not met on this issue) In Asay the alleged prejudice to the defendants was far more egregious than presented in the case at bar. In Asay, the State presented evidence not only of a “swastika” but also that the defendant had referred to the victims as “n------" and that he had “white pride” and “SWP” which stood for supreme white power tattooed on his body. In comparison, the State here seeks to introduce a firearm magazine hand-etched with swastikas that was left at the scene by the killer and evidence that directly connects theDefendant with that particular firearm magazine, Additionally, this Defendant, who was not only wearing clothing that matched the description of the shooter that left behind a firearm magazine hand-etched with swastikas on each side, but also was found to be wearing a boot hand-etched with the design of a swastika, ‘The hand-etched swastika on his boot is therefore relevant to prove he was the shooter that left the firearm magazine hhand-etched with swastikas at the scene of the murders. JT Snead’s identification of the firearm magazine with the hand-etched swastikas as belonging to the Defendant serves to prove the Defendant’ identity as the shooter. It should be noted that Florida courts apply the same Rule 403 balancing test as the Federal Rules of Evidence and federal case law. Westley v. State, 416 So. 2d 18 (Fla. Ist DCA 1982). See also Smith v State, 404 So, 2d 167 (Fla. 1st DCA 1981). Like in Asay, the United States District Court found that racially prejudicial evidence does not make it inadmissible, In Prevedello v. Cate, the defendant was charged with seven felony counts: (1) possession of methamphetamine for sale with a firearm; (2) possession of morphine; (3) possession of oxycodone; (4) possession of controlled substances (morphine and oxycodone) while armed with a firearm; (5) possession of a firearm by a felon; (6) possession of ammunition; and, (7) possession of a deadly weapon, The charges were brought after police discovered contraband during a parole compliance check of his residence. Jd. at 1 In order to establish a connection between the defendant and the subject mobile home, the prosecution entered photographs of his Nazi and Confederate tattoos. In addition, white supremacist materials, a Confederate flag, and a Confederate sticker were also entered into evidence due to the fact they were found in the same bag as the tattoophotographs. Id, At 21-22. The defendant objected to the admission of the aforementioned material and argued the evidence was more prejudicial then probative, ‘The trial court disagreed and the defendant was convicted, He appealed to the California Court of Appeals. Of his four claims, he contends the courts’ admission of Nazi and Confederate tattoos, white supremacist materials, a Confederate flag, and a Confederate sticker was improper. The claim was denied. The court opined: The photographs of defendant's Nazi tattoos, although inflammatory, had direct relevance to a critical element of the prosecution's case— defendant's dominion and control over the mobile home. The officers conducting the parole search of the mobile home recovered Nazi and white supremacist documents, a confederate flag, and a tool box with a confederate flag sticker. Defendant admitted that, at least in the past, he subscribed to Nazi and white supremacist beliefs. The photographs of his tattoos, which were also found in the mobile home, directly connected defendant to the documents and lag found at the location. They were therefore relevant to determining whether defendant resided at the mobile home, and the trial court did not abuse its discretion by ruling that such relevance outweighed any prejudice that might flow from the racist nature of the evidence. dd, at 22. The defendant filed a petition for a writ of habeas corpus in the California Court of Appeal which was denied, and then subsequently filed a writ of habeas corpus in the California Supreme Court, which was also denied. The defendant then filed for federal habeas relief in the United States District Court for the Central District of California. One of the grounds contended by the defendant was the prosecutor committed misconduct by introducing Nazi and confederate tattoos. The District Court agreed with the appeals court and found the state court’s rejection of the defendant’s claims were not contrary to, or an unreasonable application of, clearly established federal law. Id. at 22-23. Thus, evidence of Nazi and Confederate tattoos, white supremacist materials, a Confederate flag, and a Confederate sticker were properly admitted, The hand-etched swastikas in this case are relevant to establish the identity of the Defendant and connect him to the weapon found at the scene of the crime. The State is aware evidence admissible for one purpose may be inadmissible for another, See Consalvo v. State, 697 So. 2d 805, 813 (Fla. 1996). The State has no intention of arguing the racist nature of the symbol or that the Defendant is a racist. The admission of the hand-etched swastikas is for identification purposes, and not to establish the Defendant's character or tendencies. ‘The State’s admission of the evidence of the hand-etched swastikas found in the magazine of the murder weapon and on the right boot wom by the Defendant shows a clear nexus and corroboration as to the identity of the shooter. The shooter depicted in the video is wearing a baseball style hat, a maroon collared shirt with the initials JROTC, black pants, and boots. ‘The video shows the same individual leaving behind the murder weapon on the third-floor stairwell of the 1200 building. The Defendant was arrested wearing clothing that matched the shooter; however, the same casual dress uniform was ‘worn by other students, and some faculty, on the day of the incident. As such, the JROTC casual dress uniform was not particularly unique or distinctive. Identity is a critical element of the crimes charged in the indictment, the proof of which the State must establish, The Defendant was arrested wearing black leather boots, The right boot exhibited a hand-etched swastika. The magazine in the AR-15 firearm that was used to shoot and kill, and left at the scene, also exhibited two hand-etched swastikas. These swastikas serve to establish his identity as the person depicted in the video, and that hewas not merely another student at the school dressed in this shirt. It is highly relevant evidence that the person who committed these crimes left behind a firearm magazine with prominently hand-etched swastikas, and shortly after the incident, Nikolas Cruz was apprehended wearing a boot with a swastika hand-etched into the leather. Although the murder weapon was not with the Defendant at the time of his arrest, the connection between the Defendant and the hand-etched swastikas on the magazine is corroborated by the testimony of Jameson Todd ‘JT’ Snead. ‘The Defendant lived with JT Snead and his family during the time of the shootings and was familiar with the subject AR-1S firearm and the firearm magazine hand-etched with swastikas on each side, IT Snead identified the subject swastika magazine as the same one belonging to the Defendant. As such, any argument that the admission of the magazine swastikas is more prejudicial than probative is refuted by the aforementioned identification linking the hhand-etched swastikas on the murder weapon magazine to the Defendant, Notwithstanding the admissibility of the hand-etched swastikas themselves, both the murder weapon and boots will be introduced into evidence by way of proper predicate and foundation laid through witness testimony. It is the State’s contention that the hand- etched swastikas found on the magazine and on the Defendant’s boot are highly relevant to establish his identity and prior possessionownership of the murder weapon. Regardless of whether the Defendant concedes ownership of the murder weapon, identity is still an element the State must prove, Any identification by a witness is subject to cross examination. See Riccardi v. Smith, 2020 WL 1497853 (M.D. Pa. January 27, 2020) (the defendant filed a writ for habeas corpus relief alleging, among many grounds, the Pennsylvania Superior Court erred by denying his claim for ineffective assistance ofcounsel for failing to object to testimony that the defendant has a swastika tattooed on his chest. The defendant contended this evidence was not necessary because the witness knew the defendant without the need to look at tattoos. The Pennsylvania Superior Court disagreed and found the witness’s identity of the defendant was subject to attack on cross examination and it was admissible 10 bolster the identification testimony). As such, these hand-etched swastikas are a distinctive characteristic that can assist the jury in identifying the Defendant, ‘They are admissible under § 90.402, Fla, Stat. (2020) and not unfairly prejudicial pursuant to § 90.403, Fla, Stat. (2020) and the Rule 403 balancing test. Lastly, but most fundamentally, identity is an element ingrained in the States case. State v. Freeman, 380 So. 2d 1288, 1289 (1980). The hand-etched swastikas establish identity, and as such, they are material and should be admitted. WHEREFORE, the State respectfully requests that this Court GRANT its Motion for State’s Motion for Pre-Trial Ruling on Admissibility of Evidence, and admit (1) the swastikas hand-etched on each side of the firearm magazine located in the AR-15 firearm, used in the shooting, and left at the scene; (2) The hand-etched swastika on the right boot worn by the Defendant when he was arrested approximately an hour and twenty minutes after the shooting began; and (3) the identification by Jameson Todd (“JT”) Snead of the firearm magazine hand-etched with swastikas on both sides as belonging to the Defendant. 10THEREBY CERTIFY that a true copy hereof has been furnished electronically on this 22nd day of January, A.D 2021, to Attorneys for Defendant: Public Defender’s Office: APD Melisa McNeill, Esq., APD David Wheeler, Esq., APD Gabriel Ermine, Esq., and APD Tamara Curtis, Esq Emuil: discovery@browarddefender org; msly@browarddefender.org David A. Frankel, Esq., Special Assistant Public Defender Email: david@bluelotuslaw.com; eservice@bluelotuslaw.com; paralegal @bluelotuslaw.com: Respectfully submitted, Isl Nicole Chiappone {si Jeff A. Marcus Nicole Chiappone Jeff A. Marcus Assistant State Attorney Assistant State Attorney Florida Bar #22422 Florida Bar # 032719 Ph: 954-831-5893 Ph:954-831-7911 Email: courtdocs@sao17.state.fl.us Email: courtdocs@sao17.state.fl.us iEXHIBIT “A”EXHIBIT “B”EXHIBIT “C”Evidence Title: JT Snead Case#: 17-1802-000525 Transcribed by Korman, Dale (17828) Curcio: The following statement is being taken by Detective John Curcio ofthe Broward Sherifts Office. fm going to take my mask off, do you guys have any problems with that? Okay. December ‘ith, 2020 at 1:90 PM atthe ofice of Lewis, Un, Jameson, Whats your fullname and date of it JT Snead: Jameson Todd Snead. March 20th, 2000. Curcio: Okay. They call you JT, correct? sT Snead: Yes. Curcio: Alright, and ail your contact information has remained the same since the last couple oftimes. Ne talked to you? JT Snead: Yes. Curcio: Okay. You swear everything about to tell methe truth, the whole truth and nothing but the truth so help you God? JTSnead: Yes CCurcio: Okay. i's come to my attention that during, um, some interviewer, some, uh, some pointof comersation, uh, the mention of Nicholas Gruz and swastikas care up. Can you take me back and in your relationship with Nicholas Cruz, did you ever see anything swastikarelated uh in any ofhis items, clothing or anything? ST Snead: Un, he only there was only two items that I can recellwes on @ hat and a magazine Curcio: Okay. What gun magazine was that? ST Snead:AR Curclo: Okay. And that was, do you remember ‘he brand? JT Snead: No Curcio: Okay. Did he only own one AR? ST Snead: Yes Curcio: Okay. Wasithis AR that you saw the magazine? ST Snead: Yes Curcio: Okay. Aight. As far as you go, alittle detail of, ofthe symbol ofthe swastika, um, obviously people relate to swastikas and Nazis, Neo Nazi, stuflike that. JT Snead: Uh, hun. Curcio: Did he ever talk about that kind of stuff? JT Snead: No, notatall Curcio: Did he ever talk about why he would have that swastika on his magazine? JT Snead: NoEvidence Title: JT Snead Cased: 17-1802-000525 Transcribed by Korman, Dale (17828) CCurcio: Alright. Um, when he interacted with other races, normally, you know, again, going back to the Neo Nazis, hated by the Neo Nazis or disliked by the Nazis, did you ever see him talk about other races in anegative way? JT Snead: Uh, he talked to them about everybody really in a negative way. Curcio: Okay. Atone point he went out though with, with a girl who was Jewish, correct? JT Snead: I believe so. Not entirely too sure. ‘Curcio: Okay. The gir who got into, you guys hada fight with the boyfiend. You remember who tm talking about? JT Snead: Araya Curcio: Okay ST Snead: believe his name was. CCurcio: Thats who you got into the ight with. The gil was Ms. Brunner? IT Snead: No clue, had never seen her Curcio: Okay. How about, did he ever tal« about a, uh, and again, ! dont know where nationality is, but an Orientai gi that he had mel, uh, anywhere else? JT Snead: Um, the only name that | would know is probably ike Emily or something lke that. Curcio: I think Emily's Brunner, Brunners name. JT Snead: Oh, yeah, Curcio: That's the one yall got ina fight over. This was, this was somebody from Deerfield high school? JT Snead: Im not entirely too sure. I cant remember the name, Curcio: Okay. Yeah, but he never said anything disperaging about any racist? Curcio: Sowhy he would have a swastika on his magazine? JT Snead: No, no. Curcio: Allright. 'm gonna show you a picture of an AR 15 and on the bottom ofthe magazine, there's something etched init. Does that look like what youre talking about? ST Snead: Yes CCurcio: Aight, ifyou can do me a favor. Put yourintials aside of? ST Snead: The back, the font? Curcio: No, just right in font of. Um, you werent present when he actually etched that were you? sTSnea fo, he would have showed it to me.Evidence Title: JT Snead Case#: 17-1802-000525 Transcribed by Korman, Dale (17828) Mr. Lewis: You saw that? ST Snead: Yeah Curcio: Forthe recor, that was dad. No problem. No problem. Um, tm going to go inital your intas. Allright. Anything else? Swastika related or anything else? Un, you never saw, uh, was the hat, uh, something that he dis himse¥for was it ike a store bought hat withthe swastika? ST Snead: Un, something that he did himsett Curcio: Alnaht, you remember what colar the hat was? JT Snead: ttwas lke atan carmo Curclo: Okay, How about anything relating toa backpack? Did you ever ty them? ST Snead: No, sir. Curcio: im just trying to make you remember, okay. Um, anything else thatyou can think of? ‘ST Snead: Nope Curcio: Mr: Lewis? Mr, Lewis cant think of anything ‘Curcio: Alright, um, Ijust want to make sure we got everything covered so we don't have to bring you down again. JT Snead: Yes. Mr. Lewis: Thank you. Curcio: Alright, this will conclude the statement given to Detective Curcio on the above date and time.