Brady Brief

ISSUE

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR NEW TRIAL WHERE THE PROSECUTOR DELIBERATELY WITHELD MATERIAL IMPEACHMENT EVIDENCE CONCERNING THE PRIMARY WITNESS ON THE ELEMENT OF PREMEDITATION

       Troy Williams was the key witness to establish the element of premeditation necessary to convict Appellant of murder in the first degree. Prior to trial, Appellant’s trial counsel diligently sought to uncover evidence that could be used to impeach William’s testimony. Efforts made by Appellant included:

1)   Appellant filed a “notice of election to participate in discovery and request for favorable material;” (R. 14--17)

2)   In this notice, Appellant specifically sought “any material or information within the State’s possession or control which tends to . . . affect the credibility of any person described in Fla. R. Crim. Pro. 3.220(a)(1)(i). . ..” (R. 15)

3)   Additionally, Appellant specifically sought “the names of any persons who have been promised anything for their statements or testimony relating to this cause, including (but not limited to) offers or promises of; money, preferred treatment, reward, immunity, leniency, favorable recommendation or other benefits, identified as such.” (R. 16)

4)   Additionally, Appellant sought “Information or materials regarding charges pending in this or other jurisdictions against any listed witnesses whether such charges have been formally filed or not” (R. 16)

5)   Appellant also sought “Information or materials relevant to witnesses means of obtaining knowledge, power of memory and observation, way of life or associations which could have a bearing on said witness’s testimony in this cause.” (R. 16)

6)   After Appellant was unable to obtain service of process for a deposition subpoena upon Troy Williams, Appellant’s counsel filed a “motion to compel state to furnish correct witness address . . .” (R. 431)

7)   After taking the deposition of Williams, Appellant filed an “amended motion to produce criminal records of witnesses.” (R. 541) In this motion, Appellant noted that: “Troy Williams denied any criminal history in deposition.” (R. 541)

     Williams proved to be a key witness for Appellee at trial. He was called to testify on February 1, 2011 (R. 1191) and said that he was well acquainted with Appellant, both through work and socially. (TT 750--752) Williams helped Appellant move his belongings out from the property on Kennedy Drive. (TT 755) He testified that Appellant stated that: “he wanted to get his property back” and that “he wanted to kill the bitch.” (TT 756) He further described a subsequent contact with Appellant where he alleged Appellant stated: “That he wanted to get rid of her.” (TT 758) Williams also alleged that Appellant said: “He wanted to kill her and bury her out in the water or ground.” (TT 759) According to Williams, Appellant also discussed burying her in the woods. (TT 759) Williams claimed that Appellant discussed killing Susie “every time I seen him or talk to him on the phone.” (TT 761) Finally, Williams testified that Appellant had also mentioned that he wanted to get rid of Michael Bistranin as well. (TT 764--65) This was the only specific evidence offered by Appellee to establish that Appellant had a premeditated intent to kill Mr. Bistranin.

     Appellant, however had been unsuccessful in discovering relevant impeachment information. Therefore Appellant engaged in minimal cross-examination of Williams. (TT 767--68)

     After the trial had concluded, and Appellant had been found guilty of two counts of first-degree murder, a number of facts concerning Mr. Williams came to light. These facts were set out in the motion for new trial, (R. 1139--43) and corroborated by supporting exhibits (R. 1164--1190).

       Deputies from the Sarasota County Sheriff’s Office had interviewed Troy Williams on January 21, 2011. (R. 1179) During this interview, Williams confessed to stealing $3,750 in cash to support his crack cocaine habit. (R. 1179) The theft had been ongoing from September 2010 through November 2010. (R. 1179) Williams was not immediately arrested. A warrant was signed On January 28, 2011. (R. 1166) The judge who signed the warrant set bail at “ROR per LEO request.” (R. 1166)

    Williams appeared at Appellant’s trial on February 1, and testified from 2:28 – 2:50 p.m.(R. 1187). Immediately following his testimony, Williams was arrested on the outstanding warrant and released from custody. (R. 1181)

       The motion for new trial was heard on April 20, 2011, and Appellant presented the above-described facts. (R. 1990, 1994-96) At the hearing, “the prosecutor admitted being aware during the Defendant’s trial of the investigation against Williams.” (R. 1300, 2020) Specifically, Counsel for the Appellee told the trial court that she had been contacted by Detective Szalbirak prior to January 21 and told that he was investigating Williams for theft. (R. 2020) She advised the Detective that he should interview Williams after she finished her trial prep on January 21. (R. 2020)

     After Detective Szalbirak interviewed Williams, he asked the prosecutor: “Do you have a preference about when we should arrest him?” The prosecutor replied: “(Y)es, I have a preference. I would like you to arrest him after the trial, and we took it from there.” (R. 2021) Notably, Detective Szalbirak was also a lead investigator into the murder investigations at issue in this case. (R. 2022)

      Not only did the prosecutor admit that she knew of the impeachment materials, she acknowledged that she deliberately withheld these materials from Appellant. As she stated at the hearing: “I decided that it was not favorable evidence and, furthermore, that it was not material, and the defendant would not be prejudiced if this was not disclosed.” (R. 2021) 

         The trial court denied the motion for new trial. In the order, the court noted: “Although the Court is concerned with the prosecutor’s decision not to disclose law enforcement’s investigation of Williams, it will deny the motion for new trial. . .” (R 1301) The trial court found that “the State’s failure to disclose law enforcement’s investigation of Williams was improper.” (R. 1302)

       Appellant avers that the trial court erred in denying his motion for new trial. In Mordenti v. State, 894 So.2d 161 (Fla. 2004), the Florida Supreme Court outlined the prosecutor’s responsibility under Brady v. Maryland, 373 U.S. 83 (1963):

Brady requires the State to disclose material information within the State's possession or control that tends to negate the guilt of the defendant. Errors involving the suppression of evidence in violation of Brady present issues of constitutional magnitude. As expressed in Brady, the rule is premised on the principle that reversal is warranted when the State fails to disclose to the defense exculpatory or impeaching evidence that prejudices the defendant, thereby undermining confidence that he received a fair trial. Mordenti, 894 So.2d at 168 (citations omitted)

     The key principle announced by Brady is: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 US at 87.

       In Cardona v. State, 826 So.2d 968 (Fla. 2002) the Florida Supreme Court confirmed a three part analysis for appellate courts confronted with a Brady claim: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Cardona, 826 So.2d at 973 (citations omitted).

      Cardona also confirmed the standard of review: “The determination of whether a Brady violation has occurred is subject to independent appellate review.” Id.

      In the case at bar, there is no dispute that impeachment evidence favorable to the accused was withheld. Nor is there any doubt that Appellee, the State, willfully failed to disclose the evidence. The issue for determination by this Court is whether prejudice ensued.

       Appellant again notes that the witness, Troy Williams, was key to Appellee’s case. Williams was the only witness to claim that he overheard Appellant making multiple threats against the life of Maureen Modlin. Additionally, Williams was the only witness who provided evidence tending to establish that Appellant had a premeditated intent to kill Michael Bistranin.

     Furthermore, Appellee specifically argued to the jury that the testimony of Williams provided the proof of premeditation. In closing argument, Appellee stated:

     Premeditation, a lot of talk about premeditation in this trial, how there is no premeditation. Premeditation can happen in an instant. But in this case it happened a long time ago. Premeditation began back in 2006, back at the injunction hearing when Susie Modlin went in front of Judge Haworth and asked for the defendant to please keep away from her, please stay away from her because she said he’s  unpredictable. I don’t know what he’s going to do. That’s 2006.

     2007, he repeatedly announces his intentions. I’m going to kill Susie he tells Russell Herter. I’m going to kill Susie he tells Troy Williams, not once but twice. And he also tells Troy Williams he’s going to bury her body in the woods or perhaps take her out into the ocean on his boat and dump her into the water.

     2007, the defendant David Myers, tells Troy Williams he is also going to kill Michael Bistranin.

      2009, the defendant does, in fact, carry out his intentions and he murders Susie and Michael.

  (TT 1487-88)

       Had Appellee complied with their discovery and ethical responsibilities, Appellant could have impeached Williams on cross-examination on the following matters:

 1) That Williams had an ongoing addiction to crack cocaine that could have affected his abilities to perceive, recall and testify;

2) That Williams had pending charges against him that could have resulted in a period of incarceration of up to five years;

3) That Williams had been provided with favorable treatment by one of the investigating detectives in that he was not arrested immediately and the detective recommended to the judge that he be released on his own recognizance.

       All of these matters could have significantly affected the juries’ assessment of his credibility. However, because of the failure to disclose, Appellant was unable to impeach or confront Williams.

      “Whether evidence is ‘material’ for Brady purposes is a mixed question of law and fact subject to independent review.” Mordenti, 894 So.2d at 170. This evidence was material.

[T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Strickler v. Greene, 527 US 263, 290 quoting Kyles v. Whitley, 514 US 419, 436 (1995)

      If Appellant had access to the impeachment material, he could have effectively cross-examined Williams and cast doubt upon his testimony that Appellant had repeatedly threatened the two deceased individuals. This doubt would have been relevant as to the element of premeditation. If the jury had doubts on the issue of premeditation, they may well have considered Appellant’s evidence of insanity in a different light.

      The failure of Appellee to provide this material information denied Appellant his constitutional right to confront the witness against him, in violation of the Sixth Amendment to the United States Constitution. This proposition was set forth by the United States Supreme Court in Davis v. Alaska, 415 US 308, 316 (1974):

     Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. (emphasis supplied)

         In Modenti, the Florida Supreme Court concluded:

The withholding of this information by the State precluded Mordenti from defending himself fully and fairly. Our justice system strives to ensure that each party's right to the same information is coterminous.

   Modenti, 894 So.2d at 174

     In the case at bar, Appellee unilaterally concluded that she would not provide critical impeachment information on a critical witness to Appellant. This prevented Appellant from cross-examining the witness. Appellant was prejudiced because the fact-finder was left with incomplete information about the key witness as to the element of premeditation. This scenario is very similar to that which the Court was confronted with in Davis v. Alaska:

     We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green's testimony which provided "a crucial link in the proof . . . of petitioner's act." The accuracy and truthfulness of Green's testimony were key elements in the State's case against petitioner.

   Davis, 415 U.S. at 317.

  There is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" Strickler, 527 US at 280. This Court should reverse the trial court’s denial of Appellant’s motion for new trial.