Opinion
No. 3D09-2540Lower Tribunal No. 01-7975Lower Tribunal No. 06-32696
04-27-2012
Bruce B. Brugmann, Petitioner, v. The State of Florida, and Sean Casey, Respondents.
Hunton & Williams and Thomas R. Julin, for petitioner Bruce B. Brugmann. Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr. and Angelica D. Zayas, Assistant Attorneys General, for respondent State of Florida; Sean Casey, in proper person.
THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY
FURTHER MOTION FOR REHEARING AND/OR MOTION FOR
REHEARING EN BANC. ANY PREVIOUSLY-FILED MOTION
FOR REHEARING EN BANC IS DEEMED MOOT.
A Case of Original Jurisdiction - Petition for Review.
Hunton & Williams and Thomas R. Julin, for petitioner Bruce B. Brugmann.
Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr. and Angelica D. Zayas, Assistant Attorneys General, for respondent State of Florida; Sean Casey, in proper person. Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge
ON MOTION FOR REHEARING
PER CURIAM.
We grant the petitioner's motion for rehearing and grant the petitioner's request to issue a written opinion. We withdraw the Court's prior order denying the petition for review of order sealing judicial record, and substitute the following in its place. For the reasons set forth below, we deny the petition.
Bruce B. Brugmann ("Brugmann") filed before the trial court a Motion to Intervene to Oppose the State's Motion to Seal Transcripts, which the trial court granted. It is well established that "[t]he intervenor must accept the record and pleadings as they exist in the litigation and the intervenor may not raise any new issues." Omni Nat'l Bank v. Ga. Banking Co., 951 So. 2d 1006, 1007 (Fla. 3d DCA 2007). Indeed, "[t]he law is settled that an intervener is bound by the record made at the time he intervenes and must take the suit as he finds it." Krouse v. Palmer, 131 Fla. 444, 447, 179 So. 762, 763 (1938). See also Riviera Club v. Belle Mead Dev. Corp., 141 Fla. 538, 543, 194 So. 783, 784-85 (1940); Nelson BullockCo. v. S. Down Dev. Co., 132 Fla. 495, 496, 181 So. 365, 365 (1938) ("Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding . . . ."); Greenhut Constr. Co., v. Henry A. Knott, Inc., 247 So. 2d 517, 519-20 (Fla. 1st DCA 1971) ("[S]ubject to the qualification that intervention shall be in subordination to and in recognition of the propriety of the main proceeding, an intervenor is a party for all purposes with the same rights and privileges of other parties to the cause.").
Brugmann is the editor and publisher of the San Francisco Bay Guardian. The motion to intervene, however, was filed by Brugmann solely in his individual capacity, and not on behalf of the media entity.
Intervenor's counsel also entered a special appearance on behalf of the defendant Sean Casey for the "Limited Purpose of Opposing the State's Motion to Seal Transcripts and Request for Leave to File Memo of Law." On August 11, 2009, Intervenor's counsel served, on behalf of Casey, a Supplemental Memorandum in Opposition to the State's Motion to Seal Transcripts. Brugmann adopted all of the arguments made by Casey with respect to unsealing the transcripts.
In his petition, Brugmann seeks review of the trial court's August 18, 2009 order sealing judicial records. Specifically, the records Brugmann seeks are "transcripts of tape recordings and tape recordings that are claimed by the State of Florida and the defendant below, Sean Casey, to be recordings of Casey's defense attorney, Milton Hirsch, and a 'forensic psychologist' working with Hirsch, Michael E. Rappaport, Ph.D, that were made without the consent of either." (Petition, p. 1).
As more fully discussed below, this Court previously has affirmed: (1) the trial court's rulings on the illegality and admissibility of the tape recordings at issue; (2) the trial court's rulings on whether the recordings are required to be confidential pursuant to chapter 934, Florida Statutes; and (3) the trial court's rulings on whether Hirsch and/or Rappaport had an expectation of privacy. Mandates have issued on those decisions, and the relevant terms of court have long since expired without a recall of either mandate.
Nonetheless, Brugmann argues that this Court's prior decisions have no precedential value because they were per curiam affirmances. That argument is without merit. "It is the decision of the appellate court, and not its opinion that becomes law of the case. Therefore, a per curiam decision without an opinion becomes the law of the case as to all issues concluded in the appellate proceeding in which it was entered, in the same manner as a decision supported by an opinion." Philip J. Padovano, Florida Appellate Practice, § 18.12, at 371-72 (2007-2008 ed.); see Buchman v. Canard, 926 So. 2d 390 (Fla. 3d DCA 2005) (noting that doctrine of law of the case applies to a per curiam decision of the appellate courts).
Indeed, in Bueno v. Bueno de Khawly, 677 So. 2d 3, 4 (Fla. 3d DCA 1996), this Court held that "[a] per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court's opinion or not." (quoting Mitzenmacher v. Mitzenmacher, 656 So. 2d 178, 179 (Fla. 3d DCA 1995)). Because Brugmann is an intervenor whose interest is subordinate, and because Brugmann, as an intervenor, "is bound by the record made at the time he intervenes," Krouse, 131 Fla. at 447, the doctrine of law of the case applies to him.
The only issue raised by Brugmann not addressed in this Court's prior decisions is whether chapter 934, Florida Statutes, is unconstitutional if it requires the sealing of records and limits public access to the proceedings. Brugmann cites no case law in support of this argument. The Florida Supreme Court in Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), however, held that section 934.03, Florida Statutes, was constitutional.
In Shevin, two media entities challenged the constitutionality of section 934.03(2)(d), Florida Statutes. That section requires that all parties to a conversation give consent before the conversation could be lawfully intercepted. The media entities argued that prohibiting a reporter from secretly recording conversations would impair his or her news gathering dissemination activities and constitutes a prior restraint in violation of the First Amendment. The Florida Supreme Court held that chapter 934 was not unconstitutional, and concluded:
Section 934.03(2)(d), Florida Statutes, is not a restraint or restriction on what the press may publish, nor is there an expressed or implied command that the press publish which it prefers to withhold. Nor does this case involve any intrusion upon speech or assembly. This was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation. It does not exclude any source from the press, intrude upon the activities of the news media in contacting sources, prevent the parties to the communication from consenting to the recording, or restrict the publication of any information gained from the communication. First Amendment rights do not include a constitutional right to corroborate news gathering activities when the legislature has statutorily recognized the private rights of individuals.351 So. 2d at 726-77.
Although the issues raised in Brugmann's petition have been presented to and considered by this Court on multiple appeals, we address below the factual and procedural history, as well as the multiple issues raised both here and below in the lower court's Case No. F01-7975, styled State of Florida v. Sean Casey.
I. FACTUAL AND PROCEDURAL HISTORY
On March 11, 2001, Casey's automobile struck and killed a pedestrian crossing Harding Avenue on Miami Beach. Casey was charged in Case No. F01-7975 with one count DUI manslaughter in violation of section 316.193(3)(c)3.b, Florida Statutes (2001), one count of vehicular manslaughter in violation of section 782.071(2), Florida Statutes (2001), and one count of leaving the scene of a crash involving a death in violation of section 316.027(1)(b), Florida Statutes (2001).
A. SEAN CASEY'S FIRST APPEAL BEFORE THE THIRD DISTRICT: CASEY'S MOTIONS TO SUPPRESS -CASE NO. 02-04
Prior to trial, Casey filed a motion to suppress evidence taken from his home and car and any evidence derived therefrom. In this motion, Casey asserted that the police conducted an unconstitutional warrantless search of his apartment and his car. Casey also filed a motion to suppress pre-arrest statements that he gave at the police station, asserting that these statements were obtained illegally. Finally, Casey filed a supplemental motion to suppress that incorporated his prior motions to suppress and also sought to suppress evidence obtained by the police by the physical extraction of his blood.
Prior to trial, the trial court held an evidentiary hearing on Casey's motions to suppress. At the conclusion of that hearing, the trial court granted Casey's suppression motion, and subsequently entered a written order suppressing the evidence. The State appealed, and on July 24, 2002, this Court issued a decision in State v. Casey, 821 So. 2d 1187 (Fla. 3d DCA 2002), reversing the trial court's order.
B. CASEY FLEES, RETURNS, PLEADS GUILTY, AND MOVES TO VACATE PLEA
On September 10, 2004, while awaiting trial in the traffic fatality case, Casey failed to appear in court and an alias capias was issued. Casey fled the jurisdiction and attempted to obtain permanent residency status in Chile. Chile, however, eventually began deportation proceedings against Casey. Upon Casey's extradition from Chile and return to the United States, he was charged separately in case F06-32696 with failing to appear while on bail in violation of section 843.15(1)(a), Florida Statutes. On September 1, 2006, Casey filed a demand for a speedy trial in the traffic fatality case, Case No. F01-7975.
On October 17, 2006, when the traffic fatality case was called to trial, the State offered Casey a plea. Casey accepted the State's offer to plead guilty in Case No. F01-7975 to one count of DUI manslaughter, one count of vehicular manslaughter, and one count of leaving the scene of a crash resulting in a death in exchange for a sentence of 11.5 years with the sentence as to count 2 suspended. Casey also agreed to plead guilty in Case No. F06-32696 to one count of failing to appear while on bail in exchange for a 366-day sentence consecutive to the sentence imposed in Case No. F01-7975, the traffic fatality case. A copy of the October 17, 2006, plea colloquy is attached as Appendix 1.
On November 2, 2006, Casey filed a Motion to Vacate Plea alleging that he was deprived of conflict-free counsel because his prior trial counsel allegedly advised him to flee before trial, assisted him in his efforts to flee, and encouraged him to take plea in order to prevent him from explaining that counsel advised him to flee. On or about January 5, 2007, Casey filed an addendum to his claim, arguing that prior trial counsel also rendered ineffective assistance of counsel by failing to call Casey as a witness during the suppression hearing.
C. JANUARY 8, 2007 EVIDENTIARY HEARING ON CASEY'S FIRST POST CONVICTION MOTION TO VACATE PLEA
On January 8, 2007, the trial court conducted an evidentiary hearing on Casey's Motion to Vacate Conviction and Sentence. Casey and his mother, Genevieve Casey, testified in support of Casey's post-conviction claims. The State presented the testimony of Casey's prior trial counsel, Milton Hirsch and Michael Haber, as well as Casey's therapist, Dr. Michael Rappaport. Because the issues presented in this instant petition stem from the legality and admissibility of the Hirsch and Rappaport tapes, we will focus our inquiry on those issues rather than on the suppression issues raised during the evidentiary hearing.
As evidenced by a review of the January 8, 2007 evidentiary hearing, Casey's attorney sought only the admission of the Hirsch tape.
THE COURT: Ms. Levine [Assistant State Attorney], there had been a suggestion that the Court should listen to the audio tape that was apparently from all accounts surreptitiously made in a conversation with Mr. Hirsh in his office in the presence of more than one person, but in his law office nevertheless.(January 8, 2007, evidentiary hr'g tr., p. 147) (emphasis added). As such, Casey specifically waived his right to seek to introduce into evidence the Rappaport tape.
MS. LEVINE: It's more than one tape. Dr. Rappaport was taped. There was another tape. It's quite a list of people that were taped.
THE COURT: Okay.
MR. MARKUS [Counsel for Casey]: I'm only seeking the one involving Mr. Hirsch because there is a disputed point as to what exactly he said in that meeting. I'm not seeking the rest of them.
During the evidentiary hearing, both Casey and his mother invoked their Fifth Amendment rights with regard to the tapes at issue.
Casey testified as follows:
Q You don't remember making a tape recorded statement of your conversation with your mom in Mr. Hirsch's office without Mr. Hirsch's knowledge?(January 8, 2007, evidentiary hr'g tr., pp. 39-41).
A No.
Q No?
A You said did I make a tape recording?
Q Yes.
A I'm going to -
Q Well, who made it?
A I choose to plead the fifth.
THE COURT: Sorry?
MR. MARKUS: He's pleading the fifth amendment.
THE COURT: Sounds like a plan. Next question, please.
Q During that statement that you made that you taped, isn't it true that Mr. Hirsch went over from beginning to end every single solitary piece of evidence against you with your mother present?
A That was also included in the conversation where the case stood.
Q And he spent a lot of time with you on that, about twenty-five minutes of Mr. Hirsch speaking and you and your mom listening. Right?
A At that meeting?
Q And it's at that meeting that Mr. Hirsch told you that your chances of beating this case was around ten percent?
A And that's the reason he told me to flee.
Q What information Mr. Hirsch told you was he wished he would could make this disappear for you, not you disappear, right, Mr. Casey? This?
A I don't know.
Q Well, you heard the tape, didn't you?
A That was 2004, two years ago.
Q And the tape says, I want to make this disappear for you. That's not you disappearing, is it, Mr. Casey?
A I would have to listen to the tape.
Q And so you know that there is a tape made of that statement?
A It's coming from you.
Q No. I think it came from you.
A You were speaking about the tape.
Q Several. You taped Dr. Rappaport too, didn't you?
A I'm not going to - I plead the fifth on that. THE COURT: He's pleading the fifth on that one, too. That wasn't really the question. Are you aware of a tape existing?
A Yes, I am aware.
THE COURT: Next question please.
Mrs. Casey testified as follows:(January 8, 2007, evidentiary hr'g tr., pp. 75-79).
Q Mrs. Casey, I would like to ask you some questions. You appeared at the meeting with your son and Mr. Hirsch on May 12, 2004, didn't you?
A Yes.
Q And that meeting lasted about forty-five minutes? A I guess forty-five minutes.
THE COURT: Excuse me one second. Go ahead, please.
Q And during that meeting, Mr. Hirsch spent time with just you and Sean?
A Yes.
Q And during that meeting, Mr. Hirsch gave you an entire opportunity to listen to all the evidence that Mr. Hirsch had available against your son; isn't that correct?
A No. He never said that. He just kept saying that there is no hope. I said, Milton, you know, what's going to happen to the case? What's going on? He says, there is no hope. I have no hope in this case. He said, I have no hope for an acquittal. And he said, if Sean gets convicted, he's going to go to jail for a very very long time, and he said that wouldn't be good for Sean.
Q Isn't it true, Mrs. Casey, that Mr. Hirsch started out by saying let's go over the evidence?
A Yeah. He probably did, yeah.
Q And he went over the evidence for approximately 25 to 35 minutes?
A I don't remember it being that long going over the evidence.
Q Well, didn't you tape the conversation?
A I refuse to answer on the grounds that it could incriminate me.
Q So you know there is a tape that exists of that conversation?
A I refuse to answer on the grounds that it could incriminate me.
Q And you know that that tape shows that at no time did Mr. Hirsch say anything about I wish I can make Sean disappear; isn't that correct?
A That's what I heard him say.
Q He wanted this to disappear for Sean because he felt sorry for Sean, not for Sean to disappear?
A No. That's not what I heard him say. I heard him say I wish I could put Sean in another planet somewhere and make him disappear, I took it to mean.
Q This to disappear.
A No. Make Sean disappear.
Q And if he was on another planet, then this wouldn't be happening to you and this wouldn't be real and your son wouldn't be looking at a very long prison term. Didn't he tell you that?
A Yes, if Sean wasn't here.
Q And he told you that there was a very good chance of him getting convicted because of all of the evidence that the State had against him; isn't that correct?
A Well, yeah. He said there is no chance of an acquittal.
Q He didn't say there was no chance. In fact, he told you there was a chance and he was going to work
toward that chance every step of the way, didn't he?
A Well, not that. I thought he said there was no chance for acquittal. That's what I got the impression. There was no chance of acquittal.
Q And you felt that because those were the conversations that you had with your son?
A No. I listened very carefully to what Milton Hirsch was saying.
Q And so you knew from listening to all that evidence that your son committed a very serious crime?
A I don't believe my son committed a crime.
Q But you know from the evidence that the evidence showed that he committed a crime, not whether you believe it.
A Well, I guess it was his car and, I mean, I guess we didn't know all the evidence they had, but I knew it was his car.
Q And Mr. Hirsch went through that with you, how the evidence put him behind the wheel of that car, something you don't want to believe until this day is what happened.
A Well, I don't think all the evidence shows that Sean was driving the car.
Q Right. Because you don't believe Sean is guilty of the crime, do you?
A No.
Q There is no where that Mr. Hirsch said anything about a beard or disguise during that session in his office; isn't that true?
A No. I believe he did say that. He talked about disguises.
Q Have you listened to the tape?
A I'm not going to answer that. It might incriminate me.
At the conclusion of the State's presentation of evidence, Casey's counsel asked the trial court to listen to the Hirsch tape, and presented the trial court with copies of two cases, Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000), and State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985). The State objected and argued that the tapes were illegal under chapter 934, Florida Statutes, surreptitiously made, and further unauthenticated as both Casey and his mother had taken the Fifth Amendment.
Following extensive legal arguments by the State and Casey's counsel on the admissibility and legality of the tapes, as well as Hirsch's expectation of privacy, the trial court made the following evidentiary ruling:
THE COURT: Okay. I find that this lawyer had an expectation of privacy and I don't think when he entertained the client and the client's mother, that in the giving of advice, whatever the advice might have been, short of truly aiding and abetting in some criminal nepharious deed, that he would ever expect that people were recording surreptitiously his conversation, his advice and his offering of options to people.(January 8, 2007, evidentiary hr'g tr., pp. 160-61).
I mean, lawyers do that all the time. That's what they do and then people have to decide which option they want to take. I think this was illegally recorded and but for the fact that both of these people took the fifth amendment as to their participation in the recording of this conversation, clearly illegally, that they would be facing charges themselves.
So the long and short of this is that the Court is not going to allow this evidence to be admitted and is not going to consider any surreptitiously recorded conversation by Mr. Hirsh, by Dr. Rappaport, by anybody, in making the decision as to whether or not the
defendant freely and voluntarily entered the plea in this case, number one; and number two, whether or not as to the motion to suppress that there was actions by the attorney that proved him to be incompetent and therefore not representing the defendant properly so that the plea would be overturned. So that piece of evidence is not coming in.
On March 2, 2007, the trial court entered a written order denying Casey's Motion to Vacate Conviction and Sentence. In its written order, the trial court found as follows:
THIS MATTER CAME BEFORE THIS COURT ON THE DEFENDANT'S MOTION TO VACATE THE CONVICTION AND SENTENCE. THE COURT REVIEWED THE MOTION, CONSIDERED THE TRANSCRIPT AND HELD AN EXTENSIVE EVIDENTIARY HEARING ON THE ISSUES ALLEGED. THE DEFENDANT, SEAN CASEY, WAS REPRESENTED AT THE HEARING BY ATTORNEY DAVID S. MARKUS.
THE COURT HEREBY DENIES THE MOTION FOR POST CONVICTION RELIEF AND FINDS
(1) THE DEFENDANT ENTERED INTO A NEGOTIATED PLEA WITH THE STATE ON OCTOBER 17th, 2006. THE DEFENDANT WAS REPRESENTED BY ATTORNEY MILTON HIRSCH AND MICHAEL HABER. THIS PLEA WAS MEMORIALIZED IN A PLEA COLLOQUY, A TRANSCRIPT OF WHICH IS ATTACHED HERETO AND MADE A PART HEREOF.
(2) THE DEFENDANT FILED THIS MOTION [TO] WITHDRAW THIE PLEAS OF GUILTY ON NOVEMBER 6TH, 2006.
(3) THE DEFENDANT'S CLAIM IS REFUTED BY THE ENTIRE PLEA DIALOGUE, SPECIFICALLY THOSE PORTIONS DEALING WITH THE SATISFACTION WITH THE WORK AND ADVICE OF HIS COUNSEL. THE DEFENDANT ACKNOWLEDGED THAT NO PERSON, INCLUDING ANY ATTORNEY, HAD FORCED HIM OR THREATENED HIM IN ORDER TO GET HIM TO ENTER THIS PLEA. (emphasis in original).
(4) THE DEFENDANT IS A SOPHISTICATED AND HIGHLY INTELLIGENT ADULT. (emphasis in original).
(5) AT THE EVIDENTIARY HEARING, TESTIMONY WAS RECEIVED BY THIS COURT FROM TRIAL COUNSEL, MILTON HIRSCH, MICHAEL HABER AND DR. MICHAEL RAPPAPORT. THE DEFENDANT WAS CALLED AS WITNESS AS WAS HIS MOTHER.
THE COURT EVALUATED THE CREDIBILITY OF EACH WITNESS AND THE NATURE OF THEIR TESTIMONY AND FOUND THE TESTIMONY OF THE DEFENDANT AND HIS MOTHER, ON ALL POINTS COMPLAINED OF, TO BE UNWORTHY OF BELIEF. (emphasis in original).
(6) WITH RESPECT TO THE ISSUE OF THE DEFENDANT'S FAILURE TO TESTIFY OR PRESENT WITNESSES AT ANY PRE-TRIAL HEARINGS, THE COURT FINDS THAT THESE WERE STRATEGIC OR TACTICAL DECISIONS MADE BY THE DEFENDANT AND HIS ATTORNEY.
THIS COURT FINDS, AS TO ALL ISSUES RAISED IN THE PLEADINGS, COMPETENT AND SUBSTANTIAL EVIDENCE, FROM THE TESTIMONY PRESENTED, THAT THE ACTIONS OF TRIAL COUNSEL WERE STRATEGIC OR TACTICAL DECISIONS MADE IN THE BEST INTERESTS OF THE PETITIONER.
THERE IS NO CREDIBLE EVIDENCE OF A CONFLICT OF INTEREST ON THE PART OF TRIAL COUNSEL THAT WOULD JUSTIFY THE VACATING OF THIS PLEA.
THIS COURT FINDS THAT TRIAL COUNSEL, MILTON HIRSCH AND MICHAEL HABER WERE NOT IN CONFLICT WITH, NOR INEFFECTIVE IN THEIR REPRESENTATION OF, SEAN CASEY. THE PETITIONER HAS NOT MET HIS BURDEN IN SHOWING PREJUDICE OR ACTS OF HIS ATTORNEYS THAT WERE SO DEFICIENT AS TO REQUIRE A VACATING OF THE PLEA OF DECEMBER 19TH, 2006.
THE COURT FINDS THE PLEA WAS KNOWINGLY, FREELY AND VOLUNTARILY ENTERED INTO AND DENIES THE MOTION TO VACATE SAID PLEA.
D. SEAN CASEY'S SECOND APPEAL BEFORE THE THIRD DISTRICT: LEAVE TO FILE A BELATED APPEAL -CASE NO. 08-510
On January 15, 2008, Casey, through his attorney, filed a Petition for Writ of Habeas Corpus seeking a belated appeal from the lower court's order denying Casey's Motion to Vacate Conviction and Sentence entered on March 2, 2007. On February 6, 2008, this Court granted the belated appeal and an order issued in Casey v. State, 976 So. 2d 1116 (Fla. 3d DCA 2008).
E. SEAN CASEY'S THIRD APPEAL BEFORE THE THIRD DISTRICT: FIRST POST-CONVICTION MOTION TO VACATE PLEA -CASE NO. 08-510
On August 22, 2008, Casey's post-conviction lawyer filed an Initial Brief in Case No. 08-510 challenging the denial of Casey's post-conviction motion, and raising the following four issues on appeal:
(1) . Mr. Casey was denied his fifth, sixth and fourteenth amendment rights to testify at the suppression hearing;(Emphasis added).
(2) . Mr. Casey was denied his federal and state constitutional right to effective assistance of counsel;
(3) . The trial court erred in refusing to admit a tape recording of a conversation supporting Mr. Casey's claim that defense counsel advised him to flee in violation of Mr. Casey's state and federal rights to due process; and
(4) . Defense counsel had a conflict of interest which deprived Mr. Casey of his federal and state constitutional rights to effective assistance of counsel.
With regard to the issues raised in Brugmann's petition, Casey's initial brief in Case No. 08-510 argued as follows:
At the Rule 3.850 hearing, Mr. Casey's trial counsel proffered that a tape recording existed of Mr. Casey's trial counsel advising Mr. Casey to leave the
country and requested that the tape be admitted. Mr. Casey and his mother also testified to the existence of the tape recording. Trial counsel admitted that a tape recording of him talking to Mr. Casey and his mother existed but claimed that he did not ever tell Mr. Casey to leave the country. Over the defense's objection, the trial court ruled that the tape was inadmissible. However, the trial court erred in failing to admit the tape because Mr. Casey's trial attorney lacked a justified expectation of privacy in his communication on that tape.
. . . .
Hirsch had no reasonable expectation of privacy in his tape-recorded oral communication to Mr. Casey suggesting that he flee. In the absence of a reasonable expectation of privacy, Hirsch's oral expectations were not protected under Section 934.03 of the Florida Statutes and, therefore, the tape recording of that conversation should have been admitted at the Rule 3.850 hearing.
As stated in State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985):
Section 934.02(2) in defining oral communication, expressly provides: 'Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.... From this language, it is clear that the legislature did not intend that every oral communication be free from interception without the prior consent of all the parties to the communication.
An oral communication is protected under section 934.03 if it satisfies two conditions: "A reasonable expectation of privacy under a given set of circumstances depends upon one's actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable." Inciarrano,
473 So. 2d at 1275 (holding that the defendant had no reasonable expectation of privacy in an oral communication involving the commission of a criminal act and, therefore, a tape recording of that oral communication was admissible). See also Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000) (holding that attorney lacked a justified expectation of privacy in his oral communication involving the commission of a criminal act so a tape recording of his oral communication about that criminal act was admissible).
Although Hirsch undoubtedly had a subjective expectation of privacy, here, as the Florida Supreme Court concluded in Inciarrano, his expectation was not justified where his oral communication involved the commission of a criminal act. Society is not prepared to recognize as reasonable an expectation of privacy in such activity. See Id.
(Casey Initial Br., pp. 23, 35-37) (emphasis in original).
On January 14, 2009, the State filed an Answer Brief. With regard to the issues raised in Brugmann's petition, the State argued as follows:
Section 934.03, Florida Statutes, provides, in relevant part, that "any person who ... intentionally intercepts, [or] endeavors to intercept, ... any ... oral ... communication ... is guilty of a felony of the third degree." Section 934.02(3), Florida Statutes, defines intercept as "the aural or other acquisition of the contents of any ... oral communication through the use of any electronic, mechanical, or other device." Section 934.06 further provides thatWhenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or otherproceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.Section 934.03 has been held to prohibit the surreptitious recording of face-to-face communications. State v. Walls, 356 So. 2d 294, 296 (Fla. 1978) ("an extortionary threat delivered personally to the victim in the victim's home is an 'oral communication' ... [and] pursuant to Section 934.03, the electronic recording of such 'oral communication' without the consent of all parties to the communication was prohibited"); Guilder v. State, 899 So. 2d 412, 416-417 (Fla. 4th DCA 2005) (private citizen could be prosecuted for secretly recording interviews with jurors who rendered verdict in an unrelated criminal case). The prohibition against the secret interception of oral communications represents "a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation." Shevin v. Sunbeam Television Corp., 351 So. 2d 723, 725 (Fla. 1977). Thus, the application of the prohibition found in sections 934.03 and 934.06 has been held to turn on whether the parties to a conversation have a subjective expectation of privacy in the conversation that society recognizes as reasonable. Horning-Keating v. State, 777 So. 2d 438, 447-448 (Fla. 5th DCA 2001) (secret and unconsented interception and recordings by a witness of conversations or interviews with an attorney and her clients in the attorney's law office violated attorney's protected privacy rights and the provisions of Chapter 934 of the Florida Statutes (1997)); State v. Inciarrano, 473 So. 2d 1272, 1275 -1276 (Fla. 1985) ("The statute protects only those
'oral communications' uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation). See also Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); State v. Smith, 641 So. 2d 849, 851 (Fla. 1994) (motorist sitting in the backseat of a police car for comfort and safety had no reasonable expectation of privacy; secretly recorded conversations were not inadmissible); Mozo v. State, 632 So. 2d 623, 628 (Fla. 4th DCA 1994), approved, 655 So. 2d 1115 (Fla. 1995).
Relying on State v. Inciarrano, 473 So. 2d 1272, 1275 1276 (Fla. 1985) and Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000), Appellant suggests that because trial counsel was allegedly committing a crime when urging Appellant to flee the jurisdiction, trial counsel had no legitimate expectation of privacy in his law office. This reliance is misplaced. In State v. Inciarrano, Florida Supreme Court held that the defendant did not have a reasonable expectation of privacy in his murder victim's office so that the victim's recording of his own murder, and the conversation preceding the murder, was not excludable under section 934.06, Florida Statutes. In so holding, the Court stated:One who enters the business premises of another for a lawful purpose is an invitee. At the moment that his intention changes, that is, if he suddenly decides to steal or pillage, or murder, or rape, then at that moment he becomes a trespasser and has no further right upon the premises. Thus, here, if appellant ever had a privilege, it dissolved in the sound of gunfire.State v. Inciarrano, 473 So. 2d 1272, 1275-1276 (Fla. 1985). In Jatar v. Lamaletto, this Court of Appeal held that a plaintiff who brought an action for civil remedies pursuant to section 934.10, Florida Statutes (1989), as a
result of an alleged violation of section 934.03, Florida Statutes (1989), making it unlawful to intercept and disclose oral communications without the prior consent of the parties, was entitled to no relief because he lacked a justified expectation of privacy in his extortionate threat in the victim's business office. Jatar v. Lamaletto, 758 So. 2d at 1168. Because there was no reasonable expectation of privacy in the statements, the statements were not an "oral communication" within the meaning of the statute and could be recorded by the alleged victim without the plaintiff's consent. Jatar v. Lamaletto, 758 So. 2d at 1168.
The instant case differs from State v. Inciarrano and Jatar v. Lamaletto in two significant respects. First, in both cases, the person recorded went to the office of another to commit a crime against the person making the recording. Although both Appellant and his mother invoked the Fifth Amendment when asked about the tape recording in the instant case, it is fairly obvious from the record that trial counsel did not record the conversation in his own office. (R. 1539-40, 1575, 1578, 1624- 25). Second, the testimony presented in support of Appellant's post conviction claims refutes any suggestion that trial counsel was committing any crime when the conversation was secretly recorded by Appellant and his mother. Not only did the post conviction judge find Appellant and his mother to be incredible and unworthy of belief, when given an opportunity to establish that trial
counsel unlawfully urged him to leave the jurisdiction, Appellant readily admitted that counsel never directly told him to flee nor provided any affirmative assistance before his flight. (R. 924, 1511-16, 1519, 1541-42, 1554). Instead, Appellant testified that counsel made comments and jokes about Appellant's frequent travels to South America that Appellant understood to be directions to leave the jurisdiction, but Appellant never directly asked counsel whether he should flee or otherwise clarified counsel's alleged intent. (R. 1511-16, 1519, 1541-42, 1554). Appellant's mother similarly failed to testify to any direct suggestion by counsel that Appellant unlawfully flee the jurisdiction. Instead, Mrs. Casey testified that counsel told her that he wished he could make Appellant "disappear" and that she "took the reference" to mean that she should tell Appellant to flee. (R. 1566). Like her son, Mrs. Casey admitted that counsel did not directly tell Appellant to flee or give any specific directions on how he could leave the country. (R. 1579-80).
In support of his claim that the trial court erred in ruling the tape inadmissible, Appellant claims "counsel proffered that, on the tape, Hirsch advised Mr. Casey to leave the country and, accordingly the tape should be admitted. (I.B. 34). Although it is true that counsel argued in the most general terms that the tape contained evidence of a crime, thereby diminishing or eradicating any expectation of privacy trial counsel might have had in the conversation, Appellant never precisely proffered what words were uttered that constituted the "crime" committed on the tape. (R. 1648-59). Moreover, as noted previously, the record reflects that the testimony of Appellant and his mother indicates that trial [counsel] never directly told Appellant to unlawfully flee the jurisdiction -on the tape or otherwise. (R. 1519, 1538-42, 1566). At best, the evidence suggests that trial counsel told Mrs. Casey that he wished he could make the case against Appellant disappear. (R. 1519, 1566, 1605). Under these circumstances, the post conviction judge
properly held that trial counsel had a legitimate expectation of privacy in his office when his attorney-client conference was recorded without his consent by Appellant or his mother and deemed the recording inadmissible pursuant to section 934.06, Florida Statutes.
In fact, when discussing the tape recording with post conviction counsel in a letter dated December 23, 2006, Appellant expressly acknowledged that the recording "reveals very little." (Casey v. State, 3D08-95, Petition for Writ of Habeas Corpus Granting a Belated Appeal, App. 4). See Melton v. State, 963 So. 2d 924 (Fla. 3d DCA 2007) (Appellate court may take judicial notice of its own files); Melgares v. State, 762 So. 2d 921 (Fla. 3d DCA 1999).
(State Answer Br., pp. 40-45).
On February 7, 2009, Casey, through counsel, filed a Reply Brief.
On March 4, 2009, this Court held oral argument in Case No. 08-510, and on March 25, 2009, this Court issued a per curiam decision affirming the trial court's denial of Casey's motion for post conviction relief. Casey v. State, 8 So. 3d 1144 (Fla. 3d DCA 2009) (table). On May 8, 2009, this Court denied Casey's Motion for Rehearing and Motion for Rehearing En Banc. On May 29, 2009, the mandate issued, and on June 30, 2009, the term of court ended.
During the oral argument, both Casey and the State addressed the illegality and admissibility of the Hirsch tape and also addressed Casey's suppression argument.
F . SEAN CASEY'S FOURTH APPEAL BEFORE THE THIRD DISTRICT: APPEAL OF SECOND AND THIRD POST-CONVICTION MOTIONS, AND ORDER SEALING TRANSCRIPTS OF UNLAWFULLY RECORDED CONVERSATIONS - CASE NO. 09-2555
On November 14, 2008, Casey filed a second post-conviction motion. In that motion, Casey argued that trial counsel was ineffective for: (1) failing to object to a plea induced by the trial court; (2) misadvising Casey of the consequences of his guilty plea; (3) failing to object to an inadequate amount of time to consider the plea offer from the State; (4) failing to properly investigate all available witnesses and defenses; and (5) failing to object to an illegal conviction and sentence. Casey also reasserted his claim of conflict by asserting that he had new evidence to support the claim previously raised, i.e., a fax that Casey sent to Hirsch approximately three years before Casey filed his first post-conviction motion.
On April 22, 2009, Casey filed a third post-conviction motion titled Motion for Relief of Judgment Because of Fraud. In this motion, Casey argued that the ruling on the first post-conviction motion was obtained by fraud as the transcripts of the tape-recorded conversations between Casey and his attorney (Hirsch) and between Casey and his therapist (Rappaport) contradict their testimony at the January 8, 2007 post-conviction evidentiary hearing. Casey further argued that but for the fraud committed on the trial court, his first post-conviction motion would have been granted.
On or about April 29, 2009, Casey filed an addendum to this third post-conviction motion, and in support Casey filed an appendix that included transcripts of the tapes at issue. As a result of this filing, on May 7, 2009, the State filed a Motion to Seal Transcripts of Unlawfully Recorded Conversations as they were illegally obtained in violation of Chapter 934, Florida Statutes.
It is unclear who prepared the transcripts filed by Casey.
On July 27, 2009, Brugmann's counsel served a Notice of Special Appearance of Counsel for Sean Casey for the Limited Purpose of Opposing the State's Motion to Seal Transcripts and Request for Leave to File Memo of Law. On August 11, 2009, Brugmann's counsel served, on behalf of Casey, a Supplemental Memorandum in Opposition to the State's Motion to Seal Transcripts.
The trial court heard arguments on Casey's motions and the State's motion to seal on July 29 and August 13, 2009.
On August 18, 2009, the trial court entered the following three separate orders: (1) order denying Casey's second motion for post-conviction relief; (2) order denying Casey's motion for relief of judgment because of fraud; and (3) order granting State's Motion to Seal Transcripts of Unlawfully Recorded Conversations.
With respect to the trial court's order at issue in this petition, the trial court, in a thorough and well-written order, made the following factual findings and legal conclusions, which this Court subsequently affirmed in Casey v. State, 36 So. 3d 104 (Fla. 3d DCA 2010) (table), in Case No. 09-2555:
THIS CAUSE came before the court upon the State of Florida's Motion to Seal Transcripts of Unlawfully Recorded Conversations.
In support of its motion, the State of Florida argues that a tape recorded conversation between the defendant
and his attorney and a tape recorded conversation between the defendant and his therapist, recorded without the consent of either the attorney or therapist, are illegal and inadmissible pursuant to chapter 934, Florida Statutes.
In opposition, the defendant, pro se, and through counsel, alleges that the tape recordings are exempt from chapter 934, and more specifically the exclusionary provision of section 934.06, because the recordings are of a criminal act, to wit: the aiding, abetting, counseling, encouraging or procurement of the defendant's failure to appear while on bail in violation of section 843.15(1)(a), Florida Statutes. The defendant further argues that even if the recordings were made in violation of section 934.03, the tapes are nonetheless admissible to impeach the post conviction testimony of both the defendant's trial counsel and therapist. Through counsel, the defendant argues that at the very least, an in camera review of the recordings is required to determine whether the recordings were made in violation of chapter 934. Counsel further argues that the recordings and the transcripts thereof should not be sealed if an in camera review demonstrates that the post conviction hearing testimony of either the attorney or therapist is inconsistent with the contents of the tape. In this regard, counsel not only argues that the statute should not be used "to assist a party in the commission of perjury or the miscarriage of justice," but once again invites the trial court to determine whether the communications by the attorney and the therapist were made "by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." According to counsel, this question can be answered only by determining whether the recordings capture the commission of a crime.
The Court has also heard and considered the argument, through counsel, of San Francisco Bay
Guardian Editor Publisher Bruce B. Brugmann as well as the Reporters' Committee for Freedom of the Press.
CHAPTER 934, FLORIDA STATUTES
Section 934.02(2), Florida Statutes, defines "Oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication."
Section 934.02(3), Florida Statutes, defines "intercept" as "the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device." Section 934.03, Florida Statutes, provides, in relevant part:
1) Except as otherwise specifically provided in this chapter, any person who:
(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;
* * *
(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
* * *
shall be punished as provided in subsection (4).
Section 934.03(4), Florida Statutes, provides, in relevant part, that any person who violates section 934.03(1) is guilty of a felony of the third degree.
Section 934.06 further provides:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.
FACTUAL FINDINGS
1. The legality and admissibility of the tape-recorded conversation between the defendant and his attorney was litigated by the State and the defendant at the post conviction evidentiary hearing held on January 8, 2007. The tape recording was specifically deemed inadmissible by the Honorable Leonard Glick. Contrary to the defendant's claim that Judge Glick made no ruling on the legality of this tape, a review of the transcripts shows that Judge Glick, at the conclusion of the post conviction evidentiary hearing expressly found that the attorney had a legitimate expectation that his conversation with his client in his law office would not be surreptitiously recorded, that the conversation was illegally recorded and that, but for the fact that the defendant and his mother both asserted their Fifth Amendment rights when asked about the recordings, they would have been properly
charged with violating chapter 934. (Transcripts, January 8, 2007, p. 160-161).
2. The legality and admissibility of the tape-recorded conversation between the defendant and his attorney was litigated by the State and the defendant on appeal from the denial of the defendant's motion for post conviction relief as reflected by the briefs filed in Casey v. State, 3D08-510, offered into evidence at the hearing held on July 29, 2009. The denial of the defendant's motion for post conviction relief was affirmed by the Third District Court of Appeal on March 25, 2009. Casey v. State, 8 So. 3d 1144 (Fla. 3d DCA 20009). The fact that the decision was affirmed, per curiam, does not support the defendant's suggestion that the issue may be litigated once again. See e.g., South Florida Hospital Corp. v. McCrea, 118 So. 2d 25, 31 (Fla. 1960) (the word "affirmed" when used as the sole utterance of an appellate court in disposing of a case . . . "necessarily means that the appellate court has carefully examined all points raised by all appealing parties and found them to be without merit."); Specialty Restaurants Corp. v. Elliott, 924 So. 2d 834, 837 (Fla. 2d DCA 2005) ("Under the law of the case doctrine, questions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings."); Mitzenmacher v. Mitzenmacher, 656 So. 2d 178, 179 (Fla. 3d DCA 1995) ("A per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court's opinion or not); New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025 (Fla. 3d DCA 1988) (a per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal whether mentioned in the court's opinion or not); State Com'n on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st DCA 1983) ("The case law on the effect of
a 'per curiam, affirmed' decision (PCA) is clear: It becomes the law of the case, is res judicata, but is not stare decisis.").
3. When given an opportunity to offer a copy of the tape-recorded conversation between the defendant and his therapist into evidence, the defense counsel expressly declined the opportunity to do so, stating "I'm only seeking the one involving Mr. Hirsch because there is a disputed point as to what exactly he said in that meeting. I'm not seeking the rest of them." (Transcripts, January 8, 2007, p. 147). Notwithstanding, Judge Glick expressly addressed the legality of this tape recording by stating,So the long and short of it is that the Court is not going to allow this evidence and is not going to consider any surreptitiously recorded conversation by Mr. Hirsch, by Dr. Rappaport, by anybody, in making the decision as to whether or not the defendant freely and voluntarily entered the plea in this case, number one; and, number two, whether or not there was (sic) actions by the attorney that proved him to be incompetent and therefore not representing the defendant properly so that the plea would be overturned. So that piece of evidence is not coming in.(Transcripts, January 8, 2007, p. 161). The defendant not only failed to object to this ruling, he also failed to raise this express ruling on appeal, focusing instead on the admissibility of the attorney's tape-recorded conversation. (Transcripts, January 8, 2007, p. 161; Initial Brief of Appellant, Casey v. State, 3D08-510; Reply Brief of Appellant, Casey v. State, 3D08-510). These actions are inconsistent with the defendant's present claim that publication of this conversation is necessary to impeach the post conviction testimony of the attorney and the therapist, expose perjury by these
witnesses or otherwise correct a manifest injustice resulting from the denial of his motion for post conviction relief.
4. The defendant's claim that publication of the tape-recorded conversations is required to prevent chapter 934 from being used to "assist a party in the commission of perjury of the miscarriage of justice," regardless of whether the recordings were made in violation of section 934.03, ignores the clear mandate of section 934.06, which expressly prohibits the contents of any illegally intercepted communication or evidence derived therefrom from being received in evidence in any trial, hearing, or other proceeding in or before any court except in cases of prosecution for criminal interception in violation of the provisions of chapter 934. Because concern for the truth and the prevention of perjury is paramount in all cases, the "exception" suggested by the defendant would swallow the rule and render section 934.06 meaningless.
Reliance on the concurring opinion of Morales v. State, 513 So. 2d 695 (Fla. 3d DCA 1987), is misplaced as the language quoted by the defendant is not necessary to the ruling in that case. See Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975) ("Additionally, under the doctrine of stare decisis, an appellate court's decision on issues properly before it and decided in disposing of the case, are, until overruled by a subsequent case, binding as precedent on courts of lesser jurisdiction. But a purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple. While such dictum may furnish insight into the philosophical views of the judge or the court, it has no precedential value."); State ex rel. Biscayne Kennel Club v. Board of Business Regulation of Dept. of Business Regulation of State, 276 So. 2d 823, 826 (Fla. 1973) ("The statement of the District Court of Appeal in its
opinion requiring the allocation of dates to be on the fiscal year basis in the future was not essential to the decision of that court and is without force as precedent.").
5. The suggestion that chapter 934 does not apply simply because the parties testified about the underlying conversation at the post conviction evidentiary hearing is equally unavailing. The fact the parties discussed the underlying conversation does not render the tapes admissible as the statute prohibits the recording, not the conversation, and prevents the introduction of the recording itself. As noted in State v. Walls, 356 So. 2d 294 (Fla. 1978), where the Supreme Court of Florida upheld the suppression of an unlawfully recorded conversation between the victim and the defendant on the basis of the 934 proscription, "Sub judice, no harm derives from the suppression of the tape recording since the victim is free to testify as to the alleged extortionary threats." In other words, chapter 934 protects the parties from interception, i.e. recording, but does not create an absolute privilege or protection from testimony related to the conversation. In this case, both the defendant and his mother had ample opportunity to testify that his attorney unlawfully told the defendant to flee to avoid prosecution. Instead, both testified that counsel never directly told him to flee nor provided any affirmative assistance before his flight. (Transcripts, January 8, 2007, p. 12-17, 20, 42-43, 55, 67, 80-81).
6. The fact that both the defendant and his mother testified that counsel never directly told the defendant to flee nor provided any affirmative assistance before his flight, together with the fact that the defendant admits in a letter written to his counsel before the post conviction evidentiary hearing that the recording "reveals very little" because Mrs. Casey was in the room, refutes the defendant's claim that the recording contains direct evidence of criminal actions by the attorney. (Transcripts, January 8, 2007, p. 12-17, 20, 42-43, 55, 67,
80-81; Petition for Writ of Habeas Corpus Granting a Belated Appeal, App. 4 Casey v. State, 3D08-95).
7. Importantly, on July 29, 2009, this Court, in camera, listened to the tape-recorded conversation between the defendant, his mother and his attorney. This Court finds that the lawyer had an expectation of privacy and an expectation that his voice would not be recorded. After listening several times to the entire tape, this Court finds that the partial transcripts attached to the pleadings are not fully accurate, are incomplete, and are misleading. This Court further finds that the recording contains no direct or indirect evidence of criminal actions by the attorney.
8. Section 934.06, Florida Statutes, expressly provides that "no part of the contents" of any intercepted oral communication and "no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this chapter." The fact that the defendant has transcribed the unlawfully intercepted communications and filed the transcripts as an attachment to a pleading seeking relief from the order denying his motion for post conviction relief, does not remove the taint of the initial illegality nor render the recordings exempt from the proscriptions contained in chapter 934.
Upon review of the State's motion, the defendant's responses, and the court file, it is hereby ORDERED AND ADJUDGED that
1. The defendant, and all in possession of the tape recording or a transcript of its contents, is prohibited from using or disclosing the contents of the tape-recorded conversations between the defendant and his attorney, Milton Hirsch, on or about May 12, 2004, in any pleading or in any manner without leave of court. This prohibition is not intended to deny the defendant access
to the courts, but to prevent further dissemination of the communication illegally recorded in violation of chapter 934, Florida Statutes.
2. The defendant, and all in possession of the tape recording or a transcript of its contents, is prohibited from using or disclosing the contents of the tape-recorded conversations between the defendant and his therapist, Michael Rappaport, on or about May 13, 2004, in any pleading or in any manner without leave of court. This prohibition is not intended to deny the defendant access to the courts, but to prevent further dissemination of the communication illegally recorded in violation of chapter 934, Florida Statutes.
On September 18, 2009, Casey filed a Notice of Appeal with respect to the three separate orders entered by the trial court on August 18, 2009, and on December 23, 2009, Casey filed a pro se initial brief.
Casey's Initial Brief addressed all three separate orders. However, for purposes of this Petition, the Court will focus solely on the order at issue regarding the motion to seal. Specifically, Casey argued that the trial court erred in failing to conduct an in camera review of the Rappaport tape, and erred in failing to determine whether the recording of Rappaport was unlawful. Casey further argued that the tape recordings were exempt from chapter 934, Florida Statutes, and, therefore, not in violation of chapter 934 "because the recordings are of a criminal act to wit: the aiding, abetting, counseling, encouraging, and procurement of Casey's failure to appear charge," and Hirsch and Rappaport therefore did not have a justifiable expectation of privacy. Casey further contended that the "all party consent" rule in chapter 934 violated his right to confront witnesses. Lastly, Casey argued that even if the tape recordings were illegal, they were still admissible to impeach witness testimony.
On April 21, 2010, this Court issued a per curiam decision affirming all three of the trial court's orders in Casey v. State, 36 So. 3d 104 (Fla. 3d DCA 2010) (table). On May 18, 2010, this Court denied Casey's Motion for Rehearing, and on June 3, 2010, the mandate issued. On June 30, 2010, the term of court ended.
II. ANALYSIS
A. Doctrine of the Law of the Case
Brugmann's petition seeks reversal of the trial court's August 18, 2009, order entered below sealing the Hirsch and Rappaport tapes and their transcripts. Because Brugmann's petition reargues issues previously rejected by this Court in Case Nos. 08-510 and 09-2555 and because the petition seeks reversal of an order that this Court previously affirmed in Casey v. State, 36 So. 3d 104 (Fla. 3d DCA 2010), we deny the petition as it is governed by the law of the case.
As discussed earlier, Brugmann, as an intervenor in this matter, is bound by the law of the case. Not only did Brugmann specifically adopt below the arguments advanced by Casey in his opposition to the motion to seal, but three of the four arguments asserted by Brugmann in his petition were previously raised and rejected by this Court in the prior appeals of Case Nos. 08-510 and 09-2555.
The doctrine of law of the case requires, absent limited exceptions not applicable here, that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. See Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1266 (Fla. 2006); Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001) ("[T]he doctrine [of law of the case] is 'limited to rulings on questions of law actually presented and considered on a former appeal.'" (emphasis added) (quoting U.S. Concrete Pipe v. Bould, 437 So. 2d 1061, 1063 (Fla. 1983))).
The purpose of the doctrine is "to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid 'piecemeal' appeals and to bring litigation to an end as expeditiously as possible." Strazzulla v. Hendrick, 177 So. 2d 1, 3 (Fla. 1965); State Dep't of Revenue v. Bridger, 935 So. 2d 536, 538-39 (Fla. 3d DCA 2006) ("[P]oints of law adjudicated in a prior appeal are binding in order to promote stability of judicial decisions and to avoid piecemeal litigation." (quoting Bueno v. Bueno de Khawly, 677 So. 2d 3, 4 (Fla. 3d DCA 1996))).
Because the identical legal arguments asserted in this petition by Brugmann were raised and rejected in prior appeals in this proceeding, the doctrine of law of the case governs and requires denial of the petition. B. Issuance of Mandate and End of Term
We further deny the petition on the grounds that the mandate in Case No. 09-2555 has issued on this Court's decision affirming the August 18, 2009, order -the same order that Brugmann seeks to reverse here. Moreover, the term of court expired without a recall of that mandate. The decision of an appellate court becomes final when the court issues a mandate pursuant to Florida Rule of Appellate Procedure 9.340. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So. 2d 825 (Fla. 1975). "An appellate court's power to recall its mandate is limited to the term during which it was issued." State Farm Mut. Auto Ins. Co. v. Judges of the Dist. Ct. of App., Fifth Dist., 405 So. 2d 980, 982-83 (Fla. 1981), and "the precedent limiting an appellate court's jurisdiction is equally applicable to en banc rehearing proceedings." Id. at 983. Because an appellate court is without jurisdiction to recall a mandate after the term in which the mandate issued, any action this Court would take vis-à-vis the August 18, 2009 order—either as a panel or en banc—would be void. See id. C. Constitutionality of Chapter 934
Lastly, we turn to the only issue raised in Brugmann's petition that was not previously decided on appeal—whether chapter 934, Florida Statutes, would be unconstitutional as applied if it required the sealing of records and limited public access. Before addressing the last issue raised by Brugmann, we first note the historical evolution of Chapter 934, the Florida Security of Communications Act, as explained by the Florida Supreme Court:
The history and recent amendments to chapter 934 demonstrate that the act was intended to afford broad protection to private communications. Chapter 934, the Florida Security of Communications Act, was patterned after Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510, et seq. Prior to 1974 the Florida act, like its federal counterpart, permitted the interception of defined wire or oral communications when one party to the communication gave consent:State v. Tsavaris, 394 So. 2d 418, 422 (Fla. 1981) (footnote omitted), receded from on other grounds by Dean v. State, 478 So. 2d 38 (Fla. 1985).It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.§ 934.03(2)(d), Fla. Stat. (1973). Effective October 1, 1974, however, chapter 74-249, Laws of Florida, amended the act to require all parties to a defined wire or oral communication to give prior consent:It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.§ 934.03(d)(2), Fla. Stat. (1979). This amendment "was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation." Shevin v. Sunbeam Television Corp., 351 So.2d at 726-
27. Accord, State v. News-Press Publishing Co., 338 So.2d 1313, 1316 (Fla. 2d DCA 1976). While the federal wiretapping legislation envisions that one's right to privacy must be subordinate to law enforcement interests when one party consents to the interception of a conversation, "[t]he [Florida] Legislature has determined as a matter of state public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping." State v. Walls, 356 So.2d at 296 (quoting from Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), affirmed, 272 So.2d 813 (1973)). Hence, the Florida act evinces a greater concern for the protection of one's privacy interests in a conversation than does the federal act.
Equally certain is the fact that the 1974 amendment to chapter 934 was designed to proscribe the method of interception used in this case. On the floor of the Florida House of Representatives, the only recorded debate on the two-party consent requirement of section 934.03(2)(d) was this comment by Representative Shreve:[What this bill does] is to prevent, make it illegal, for a person to record a conversation, even though he's a party to it, without the other person's consent.With no further debate, the bill passed the House 109-1.
As previously noted, Brugmann cites no case law in support of his argument that, as applied, Chapter 934 is unconstitutional, but instead argues that "[w]hatever the origin [of the 1974 amendment to Chapter 934], it always has been questionable whether the law serves a legitimate public purpose because it often serves only to protect the ability of one party to a conversation to lie about what was said in the conversation after the fact." (Pet. at 34-35). Brugmann further asserts that because "[a]ll of the participants in the recorded communications testified about the contents of them at the hearing before Judge Glick . . . . [u]nder these circumstances, the law does not serve its traditional purpose of preventing the disclosure of the contents of oral communications. Instead, it protects the ability of the parties to testify inconsistently about the recorded communication or it conceals that they have testified truthfully." (Pet. at 35).
The Florida Supreme Court, however, addressed Brugmann's argument in both State v. Walls, 356 So. 2d 294 (Fla. 1978), and Tsavaris, 394 So. 2d at 418.
In Walls, a victim of extortion secretly recorded a conversation which occurred in his home between himself and the alleged extortioners during which the extortionary threats were made. The trial court suppressed the recording on the ground that it was an illegal interception under Chapter 934. The Florida Supreme Court upheld that decision, finding that:
We agree with the trial court that an extortionary threat delivered personally to the victim in the victim's home is an "oral communication" within the definition of Section 934.02(2), Florida Statutes (1975); that pursuant to Section 934.03, Florida Statutes (1975), the electronic recording of such "oral communication" without the consent of all parties to the communication was prohibited; and that Section 934.06, Florida StatutesWalls, 356 So. 2d at 296-297 (emphasis added) (citations omitted).
(1975), expressly prohibits the use of such electronic recording as evidence. The subject electronic recording did not fall within any of the situations permitting interception delineated in Section 934.03(2), Florida Statutes (1975). Section 934.06, Florida Statutes (1975), contains no exception to the prohibition against use of the illegally intercepted wire or oral communication as evidence
. . . .
The language of the statutes in question is clear and unambiguous, and no exception for the situation we have before us is provided. This Court cannot substitute its judgment for that of the Legislature and create an exception which would encompass the instant circumstances. The function of this Court is to interpret the law and is neither to legislate nor determine the wisdom of the policy of the Legislature. Holley v. Adams, 238 So. 2d 401 (Fla. 1970).
. . . .
Chapter 934 was designed to effectively protect the privacy of oral and wire communications and to protect the integrity of court and administrative proceedings. By Chapter 934, the Legislature delineated the circumstances and conditions under which oral and wire communications could be authorized. The Legislature chose to prohibit unauthorized interception and use of the contents of such interception in evidence in courts and administrative proceedings. We observe that the exception contended for by appellant is not workable. Had [the victim] suspected that an extortionary threat would be made, he could have taken the appropriate action designated by Chapter 934 for authorization of the interception.
Sub judice, no harm derives from the suppression of the tape recording since the victim is free to testify as to the alleged extortionary threats.
In Tsavaris, the medical examiner recorded a telephone conversation with a murder suspect, Tsavaris, who had called the examiner. The Supreme Court held that the medical examiner's recording of the conversation was an unlawful interception of wire or oral communications within the meaning of Chapter 934. The Supreme Court, however, concluded that the medical examiner could testify as to the contents of the conversation.
The Supreme Court in Tsavaris reaffirmed its holding in Walls. Indeed, the Supreme Court commented that the district court decision in State v. Tsavaris, 382 So. 2d 56 (Fla. 2d DCA 1980), went to "great lengths to convince this Court that State v. Walls was incorrectly decided and should be overruled. We remain wholly unpersuaded." Tsavaris, 394 So. 2d at 422.
With regard to Brugmann's argument that Chapter 934 allows parties to testify inconsistently or untruthfully, the Supreme Court concluded that:
The second premise underlying the district court decision in Tsavaris is that tape recordings do not differ in principle from testimony as to the contents of conversations, and recordings have the advantage of furnishing trustworthy evidence. . . . [I]t is absolutely immaterial to a proper analysis of chapter 934 that a recording may provide more trustworthy evidence of the contents of a conversation than mere oral testimony. This would be just as true of a conversation recorded under patently illegal circumstances. Florida law mandates that while a person who engages in a telephone conversation runs the risk that another mayTsavaris, 394 So. 2d at 423-24 (emphasis added) (footnote omitted).
later testify as to the contents of that communication, he can at least be assured that the conversation will not be recorded without his consent. It is not for us to question this policy judgment, but simply to apply it.
Based on Walls and Tsavaris, Brugmann's arguments are without merit. Chapter 934 protects: (1) a person from being unlawfully recorded without their consent, and (2) prohibits those recordings from being disclosed. Chapter 934, however, does not prohibit the parties from testifying as to what transpired at the meetings in question. The fact that "a recording may provide more trustworthy evidence of the contents of a conversation than mere oral testimony" is "immaterial to a proper analysis of chapter 934" when it prohibits the electronic recording of oral communications without the consent of all the parties to the communications. Tsavaris, 394 So. 2d at 424.
As such, the trial court's order sealing the unlawfully recorded oral communications of Hirsch and Rappaport and their transcripts is neither unconstitutional nor a denial of public access. Chapter 934 prohibits the intentional disclosure or intentional use of communications obtained through a violation of Chapter 934. By sealing the illegally obtained oral communications, the trial court effectuated the intent of Chapter 934—prohibiting the further disclosure or dissemination of illegally obtained interceptions.
Lastly, we note that the testimony of Casey, his mother, Hirsch or Rappaport at the January 8, 2007 evidentiary hearing is not sealed or otherwise restricted from public access. As the Supreme Court noted in Shevin v Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977) "The First Amendment is not a license to trespass or to intrude by electronic means into the sanctity of another's home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime." Id. at 727.
Accordingly, for all the reasons stated, we deny the petition.
Petition denied.
IN THE CIRCUIT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. F01-007975
STATE OF FLORIDA PLAINTIFF,
-vs
SEAN CASEY, DEFENDANT.
RICHARD E. GERSTEIN BOIL-DING
1351 N.W. 12th Street
Miaai, Florida 33125
October 17, 2006
10:30 a.m.
The above-entitled natter cane on for hearing before the Honorable Leonard Glicfc, Circuit Judge, pursuant to Notice.
APPEARANCES:
KATHERINE FERNANDEZ-RUNDLE, STATE ATTORNEY. BY
G. LEVINE AND A. HANEY,
ASSISTANT STATE ATTORNEY,
ON BEHALF OF THE STATE.
MILTON HIRSCH. ESQUIRE AND
M. HABER, ESQUIRE,
MIAMI, FLORIDA,
ON BEHALF OF THE DEFENDANT.
GNVP REPORTING
305-545-8434
APPENDIX 1
INDEX
+---------------------------------------+ ¦Witness¦Direct¦Cross¦Re-Direct¦Re-Cross¦ +---------------------------------------+
EXHIBITS
+------------------+ ¦STATE'S ¦¦LINE¦ +------------++----¦ ¦NONE ¦¦ ¦ +------------++----¦ ¦DEFENDANT'S ¦¦ ¦ +------------++----¦ ¦NONE ¦¦ ¦ +------------------+
THE COURT: Thank you all for waiting. Let's go back on the record. State of Florida versus Sean Casey. Let the record reflect the presence of the defendant, the defense counsel and the assistant state attorneys.
Mr. Hirsch, I am advised that there is a change in position by the defense in this case pursuant to the state's plea offer?
MR. HIRSCH: Yes, Your Honor. I discussed with counsel for the state closing out both the present case and the bail jumping case which is separately charged and I was told that the state would extend an offer of one year consecutive making it a total of 12 and a half years for the resolution of both cases. We are prepared to enter a plea of guilty to both cases at this time.
MRS. LEVINE: Judge, so we are here -- the Information on the second case was just filed today so there has been no arraignment on that, so the Court should know that.
THE COURT: Well, in fact, there is a knowingly and voluntarily entered plea. That would be the arraignment.
MR. HIRSCH: That is the arraignment.
THE COURT; And that is a separate case which was not sent to us in backup which we will take, cane C6-32696.
MR. HIRSCH: I believe that is correct.
THE COURT: And that was a charge of failure to appear, a third degree felony. So as I understand it then the plea to resolve both of these cases, the bail jumping and in case number 01-7975, the defendant would be entering a plea of guilty to Count Number One, DUI manslaughter, a felony in the first degree. Count Three, vehicular homicide, also a felony in the first degree, and leaving the scene of a crash or — well, an accident involving a death or great bodily harm, a felony in the second degree. The question is are the two of those duplicitous to each other?
MR. HIRSCH: The first two counts I believe Your Honor cannot sentence as to both although you can accept a plea as to both.
THE COURT: Could the defendant be adjudicated guilty as to both?
MR. HIRSCH: Yes. He could be adjudicated as to both and sentenced cumulatively.
MRS. LEVINE: Right. And we are scoring him on the DUI, leaving the scene with death.
THE COURT: So the sentence in one and two I am sorry. The sentence in one would run concurrent with the sentence in count number three and he would not be sentenced on count number two.
MR. HIRSCH: That is correct. Your Honor.
THE COURT: And he would be entering a plea of guilty to failure to appear in case number 06-32696, a third degree felony, sentenced to a year in state prison concurrent, I am sorry, consecutive to the sentence in 01-7975, correct?
MR. HIRSCH: That is correct, Your Honor.
THE COURT: And it would be a plea of guilty to all charges and adjudication of — guilty as to all the charges, correct?
MR. HIRSCH: Yes, Your Honor.
THE COURT: Okay. And the first thing that I do before we go into the plea colloquy is to have the attorneys on the record agree that the guidelines score sheet has been accurately calculated and the proper offenses have been placed in there and whatever merital value attached to those are correct so we don't have any post conviction problems later on about the sentencing score sheet. And while you are looking that up I need to ask the clerk on the court cost since the defense is privately retained counsel, is it four hundred and fifty-eight dollars?
THE CLERK: It is $458 and a $250 fine for DUI as per the statute along with the suspension.
MR. HABER: Two hundred and fifty dollars.
THE COURT: Any other statutory fine required?
MR. HABER: No other statutory fines, but there is a permanent suspension.
THE COURT: While they are doing the calculations on the guidelines score sheet could we just determine as to 06-32696 he was charged with failure to. appear and obviously was incarcerated separately for that. I assume they put an A. Form on him in the Dade County Jail, but there has to be a separate credit for time served figure attached to that case number so we need to agree on what that is.
CORRECTIONS OFFICER: He was put on the jail card on 9/28/06.
THE COURT: Okay. So he would receive obviously concurrent credit time served. And I need to also make a determination by way of a stipulation as to the credit for time served that he would be entitled to in 01-7975. Somebody threw out the number 45 days. I don't know if that is correct.
MR. HABER: I believe it would be credit from the last booking date what was just readout because I don't believe thathe spent any time in jail prior to that. I believe that he was granted bail immediately.
CORRECTIONS OFFICER: On the DUI he was booked in on 8/31st he was booked in.
THE COURT: Of '06?
CORRECTIONS OFFICER: Yes.
THE COURT: And Mr. Casey, when you were first taken into custody on this case, very first time you bonded out Immediately, true?
THE DEFENDANT: Within around six hours.
THE COURT: You only spent essentially one day in jail?
THE DEFENDANT: Right.
THE COURT: So in case number Ci-7975 it will be agreed upon that the credit for time served is from August 31, 2006, plus one day, whatever that adds up to and then a concurrent credit fcr time served on the what we call the bail -jumping charge from September 28th of 2006.
CORRECTIONS OFFICER: That is 48 days for the AC and on the new case 20 days.
THE COURT: Okay. Concurrent 20 days.
CORRECTIONS OFFICER: So that is 49 and 20.
THE COURT: But it is actually running concurrent because you don't get additional time.
THE CLERK: Right, right.
THE COURT: All right. So let's go back to our initial question here and discuss your concern, concerning the guidelines score sheet which has been prepared by the state. Mr. Haber, have you had a chance to review this to make sure that the entries are accurate as far as the designation of the offender level, et cetera, and that the calculations are in agreement with regard to the points assessable to this defendant?
MR. HIRSCH: Yes, Your Honor.
MR. HABER: Yes, Your Honor
THE COURT: And prosecution also agree than these are the correct attribution by way of category number and numerical calculations?
MRS. HANEY: Yes, Judge.
THE COURT: All right. We are going to sign the guidelines score sheet. Give it back to the clerk so we will have that on the record. And Mr. Haber and Mr. Hirsch, we are also going to indicate and ask the state to stipulate that for case number 06-32696 that the defendant was essentially taken into custody on September 28th of 2006 notwithstanding that he was in custody already on the alias.
MR. HIRSCH: He was in physical custody, yes, Your Honor. THE COURT: So that would add up to 20 days credit time served for that case.
MR. HIRSCH: Yes, Judge.
THE COURT: State agrees as well?
MRS. HANEY: Yes.
THE COURT: For case number 01-7975 he was bonded out in about six to 10 hours so that is one day credit time served plus from August 31, 2006, when the alias capias was served. So that adds up to 4 8 days credit time served, correct?
MR. HABER: Correct.
THE COURT: Ultimately it is 48 days credit time served since it runs concurrent with the other one. Are you in agreement with that?
MR. HIRSCH: Yes, Judge.
MRS. HANEY: Yes, Judge.
THE COURT: Okay. Swear in the defendant, please.
MR. HIRSCH: Your Honor, may we stand next to him? THEREUPON:
SEAN CASEY
was called as a witness and after having beer, first duly sworn, testified as follows:
THE COURT: All right. Mr. Casey, I am going to ask you please to speak up nice and clear so that the court reporter can hear you as well as myself and I need to ask you some questions under oath. If you don't understand any of the questions that I am going to ask you, please ask me to repeat them or say it in such a way that you do understand. And of course anytime that you need to speak to your attorneys about any of these questions and the answers to any of these questions, please feel free to do that, all right.
If you would tell me please your full name.
THE DEFENDANT: Sean David Casey.
THE COURT: How old are you?
THE DEFENDANT: Thirty-three years old.
THE COURT: How far did you go in school?
THE DEFENDANT: I have a Master's Degree.
THE COURT: Are you a citizen of the United States?
THE DEFENDANT: Yes.
THE COURT: Where were you born?
THE DEFENDANT: Massachusetts.
THE COURT: Okay. As you stand here at this moment, are you under the influence of any alcohol or drugs of any kind including any prescription medications?
THE DEFENDANT: No.
THE COURT: Do you have any substance in your body at this moment that could prevent you from understanding what we are doing here today by way of this plea that has been spoken about and will be enterad into by you?
THE DEFENDANT: No.
THE COURT: Do you have any mental problems that would prevent you from understanding any of the details of the plea that we are about to take or any of the consequences of this plea, anything that is a problem for you in your mind that would prevent you from understanding what is going on here this afternoon?
THE DEFENDANT: No.
THE COURT: A plea has been offered to you by the prosecution, worked out for you essentially with the assistance and the recognition of your attorneys that will resolve two cases. In the more serious of the cases Cl-7975, you will be entering a plea of guilty to the charge of DDI manslaughter slash failing to render aid. It is a felony in the first degree that carries with it a maximum punishment by itself of 30 years in state prion with credit for time served. You will also be pleading guilty to count two vehicular homicide slash failure to stop which is a separate first degree felony that if it were standing alone would carry a statutory maximum punishment of 30 years in state prison. And depending on the circumstances of any particular case that punishment could be imposed separately from Count Number One. But the statutory maximum for that charge itself is 30 years in state prison.
In count number three, you will be pleading guilty to leaving the scene of a crash or an accident involving death, it is a second degree felony that has a separate statutory maximum punishment of 15 years in state prison and depending on the circumstances of any particular case the punishments could run concurrent to each other, that is, together with each other, or consecutive, one on top of each other. So that if you were to be found guilty on all of these charges after a trial the Court could conceivably sentence you to 30 years in state prison plus 15 years in state prison for the sentence in count number three. If you were found guilty let's say of vehicular homicide but not the DUI manslaughter and the leaving the scene of the crash, that same maximum sentence could happen, 30 plus 15, okay? Because you are pleading guilty to counts one and two, they are duplicitous as far as the law is concerned for sentencing purposes. You will go, you will be pleading guilty to it, you will be adjudicated guilty of this charge as well as of the other two charges, but you will not be sentenced separately to count number two since you can't be sentenced to count number two if you are sentenced to count number one and vice versa.
The bottom line to all of this is the plea has been worked out for you, regardless of what the maximum punishments are, by pleading guilty to all of those charges you will be sentenced to count one and count three to eleven and a half years in state prison with an agreed upon credit time served of 48 days. You will also be entitled on that case to receive whatever gain time the Department of Corrections gives you. And what happens is when a person is sentenced to state prison they go to a processing center and they are classified and then the Department of Corrections at some point calculates what we call gain time or time off for good behavior, whatever they choose to call it in the system. And it is a certain amount of days per month that a prisoner would be awarded off of their sentence. I can't tell you how much that would be. No lawyer could tell you how much that would be. No prosecutor could tell you how much that would be. And no defense lawyer could tell you how much that would be. The Department of Corrections makes that assessment and makes that award of the gain time. It is separate and apart from the credit time served that we have agreed upon of 48 days that we already know about.
Case number 06-32696, you will be pleading guilty to the charge of failure to appear while out on bond and that is a separate third degree felony that has a separate maximum punishment of five years in state prison. So worse case scenario if you were to be convicted of both of these cases separately that sentence could be imposed concurrently to the first case or it could be imposed consecutively, that is one on top of the other, to whatever punishment you get in the first case.
The plea that they have worked out for you in the second case is this: By pleading guilty to the charge you will be adjudicated guilty of that separate third degree felony and sentenced to one year in state prison with a concurrent credit for time served of 20 days awarded for that case alone and whatever gain time you would be entitled to separately under that case number, and that would run consecutive to the sentence in the first case, 01-7975.
The total is that by pleading guilty to all of these charges and being adjudicated guilty of all of these charges you will be sentenced for all of those charges with the exception of count number two in 01-7975 to a total of 12 and a half years in state prison with the credit for time served that we spoke about and whatever gain time that the Department of Corrections would award you as to these cases. That is the plea that has been offered to you by the prosecution, spoken to you about by your attorneys. Is that the plea that you are willing to enter into this afternoon?
THE DEFENDANT: Yes, sir. Yes, Your Honor.
THE COURT: Anybody, including any lawyer, forced you or threatened you in order to make you accept these pleas?
THE DEFENDANT: No, sir.
THE COURT: Are you entering these pleas and pleading guilty freely and voluntarily under the circumstances you believe for whatever reason that is important to you that it is in your best interest to enter these pleas?
THE DEFENDANT: Yes, sir.
THE COURT: Now, by entering these pleas you will be giving up certain rights as to both of these cases. You will be giving up the right to have your lawyers continue to investigate these cases, look for witnesses that could have come to court to testify in your favor, take statements of any and all witnesses that were listed or perhaps even not listed by the state attorney in these cases, and take the depositions of those state witnesses if you will.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You also give up the right to challenge or appeal any legal decisions that have been made by any Court that has handled these cases in both of these cases up until this point; and the right to have your lawyers continue to obviously investigate these cases and rile any legal papers or ask the Judge to throw out these cases or any of the evidence that might have been seized in either or both of these cases. You give up those rights as well by accepting these pleas today; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You also give up the right to have a trial in front of a jury, a separate jury in each of these cases; the right to remain silent; the right to have witnesses come to the trials to testify in your favor if you have such witnesses; and the right to have your lawyers question or cross examination each and every witness that would have come to the courtroom to testify against you in either or both of these cases. You give up those rights as well when you enter the plea in this these cases; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Both sides stipulate that the facts contained in the Informations, plural, the charging documents in each of the Court files together with any testimonial evidence that may be contained in each of the files, that if proven they would establish a prima facie case as to each count in each case?
MR. HTRSCH: Stipulate for the defense, Your Honor.
MRS. HANEY: Yes, Your Honor. Yes, Your Honor.
THE COURT: The Court would ask for a brief proffer as to the facts that the state would attempt to prove in both of these cases, please.
MRS. HANEY: On March 11, 2001, at 10:13 in the morning a Sunday morning the defendant was speeding down Harding Avenue heading in a southern direction. He was weaving in and out of traffic at 7Sth and Harding. He hit Mrs. Marie Montgomery, a 71 year old woman who was crossing the street after disembarking from a bus and attempting to go home. She was carrying a bag of groceries with her. The defendant continued to flee the scene, parked his car at 7271 Gary Avenue, which is in. It is a kind of a hidden area where ho parked his car and went hone after that, we believe, by some other transportation. The police arrived at the defendant's house, he claimed that his car was stolen and then many other things. The importance of Mrs. Montgomery having the groceries Judge is that they were all over the street and part of the groceries matching in the 6treet were Batched to the car found at 7271 Gary Avenue. There was food spattered all over the ear in the passenger seat as well as all over the back seat and there was not much of anything in. the driver's seat. There was also glass shattered in the passenger seat as well as the back seat and not much in the driver's seat. And we would have an expert testify that there was only one person in the car ami that was the driver because of the distribution of the glass and the food.
We would also have two experts testify that the glass that was shattered from that windshield of the B.M.W., that was parked at 7271 Gary Avenue, pieces of that glass were found at the defendant's apartment, on the defendant's clothes which the defendant admitted to wearing that morning which he had been wearing that night into the morning. He had been drinking all night at two different bars. I am sorry. Judge. And very importantly there was blood drawn that afternoon at four o'clock after the defendant was placed under arrest. The blood alcohol read as a .17 and .16 after it was read. Retrograde would show that at the time of the crash at 10:13 in the morning it was a .29. And it was in Miami, Dade County, Florida.
THE COURT: How about as to the failure to appear while out on bond?
MRS. HANEY: Judge, the case was set for sounding on September 10th and on September 10, 2004, it was set for trial, September 20th of 2004, the defendant despite the fact that he was out on felony bond did not show which he was subpoenaed to show up and we would have had the clerk to testify to that. And we have the FBI witnesses that would testify to it that the defendant was found in Chile and was transported from Chile to the United States, in Miami, Dade County, where he was subsequently arrested for the proceeding case.
THE COURT: Mr. Haber and Mr. Hirsch do you agree that if the state were able to prove all of those that they would establish a prima fascia case as to each of the elements on each of the cases?
MR. HIRSCH: Yes, Your Honor.
MR. HABER: Yes, Your Honor
THE COURT: Okay. Mr. Casey, couple other things that we need to talk about. I am required to tell you that by entering the plea, in these charges on your first case 01-7975 that your Florida driver's license, assuming that you have one, your Florida driver's license will be permanently revoked by the Department of Motor Vehicles.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And knowing that, are you still willing to accept the plea?
THE DEFENDANT: Yes.
THE COURT: We have also established a document which I have asked your attorneys and the prosecution to look at and to share with you which essentially is a DNA inquiry addendum for purposes of the plea and it applies to both case numbers and it appears that all parties have reviewed it and indicated that by marking the appropriate boxes and placing their signature and date on there that they understand what the DNA evidence was or if there was not any DNA evidence and how it was being utilized. We do that so that we put this in the court file so that in case there is any later question by anybody we can have a record that the attorneys reviewed what DNA information there might have been or might not have been, and also the defendant in this case concedes that there was DNA information or not and that there was -- if there was, that it was appropriately tested, et cetera, and that the party has done that.
So I need to ask you for the record, is that your name that appears in the middle of signature area of the document?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Has anybody including any lawyer forced you or threatened you in order to make you place your name and date in that document?
THE DEFENDANT: No, sir.
THE COURT: You have had a chance to review that document and it is accurate as far as you are concerned?
THE DEFENDANT: Yes, sir.
THE COURT: All right. So during the course of this case you have had an opportunity obviously to deal with your attorneys and I need to ask you whether you have had an opportunity to discuss with the attorneys, and this applies to both of the cases, all of the facts concerning this case as either outlined by the prosecution or things that were represented to you that the prosecution would be able to prove in these cases. Have you had an opportunity to discuss with your lawyers the facts of these cases as presented by the prosecution or any documentation as to what the state intended to prove?
THE DEFENDANT: Yes, sir.
THE COURT: Have you had an opportunity to discuss with your attorneys any defenses that you might have to any of these cases? And when I say defenses there are a number of defenses that apply to different cases. Not all of them apply to each case. Every case is different. There are defenses such as insanity that might apply to the appropriate case. Having net known the difference between right and wrong, and therefore I couldn't conform my activity to what they call the norm. There are defenses such as mistaken identity. I was mistakenly identified as the person who committed this crime. There are technical defenses concerning DNA not being appropriately attributable to me, the defendant. There are defenses such as alibi. I could not have committed this crime because I was not in a place where the crime was committed and I can prove that.
There is any number of defenses that people use in different cases. I don't want to know what you spoke about with your lawyers, that is not my business. But I need to know did you have an opportunity to explore all of the possible defenses and discuss the possible defenses with your attorneys to each one of these cases?
THE DEFENDANT: Yes, Your Honor
THE COURT: And are you satisfied with the work that your attorneys have done for you on each of these cases and any advise that they may have given you about the plea that was offered to you by the prosecution?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Now, I understand that some parties would like to speak. And before we actually pronounce the sentence it might be a good time to do it, but I need to just do one other technical thing here.
The Court finds the defendant alert and intelligent; that he understands the nature of the charges and the consequences of his plea; that he is accepting the plea freely and voluntarily; that understands the nature of the allegations and the consequences of his plea; that he is entering into the plea freely and voluntarily and with the advise of competent counsel and is satisfied with his counsel in both of these cases; that the facts contained in the Information, in the charging documents, in each of the Court files as read independently by the Court and the proffers of the Information concerning the facts of each of these cases as proffered by the prosecution and acknowledged by the defense that if proven that they would establish a prima fascia case as to each count in each case. And therefore the Court will accept the negotiated plea in each of these cases.
In Case Number 01~7975 Court accepts your plea of guilty to Count One, DUI manslaughter, a felony of the first degree, your plea of guilty to Count Two, vehicular homicide, failure to stop, a second felony of the first degree. And your plea of guilty to Count Three, leaving the scene of a crash involving death, a separate second degree felony. The Court will adjudicate you guilty of Counts One, Two and Three. As to Count One the Court will sentence you as agreed by the defense and state to 11 and one half years in state prison. As to Count Three the Court will sentence you concurrently to 11 and a hair years in state prison with a stipulated credit for rime served in the amount of 48 days plus any gain time the Department of Corrections may or may not award for this case number. The Court cannot impose a sentence in Count Number Two, even though the defendant has been adjudicated guilty of that because it is duplicitous under the law to Count Number One.
And in Case Number 01-7975 the Court will acknowledge that the Department of Motor Vehicles will suspend the driver's license of the defendant permanently and in that case number also as to count number, I guess it is Count Number One the Court will impose the statutory fine in the amount of $250 in that case number as well the Court must impose the standard court costs totalling $450.
In 06-32696 the Court will accept your negotiated plea of guilty as to Count One, failure to appear while out on bail. Adjudicate you guilty of Count Number One and pursuant to the state's plea offer and negotiated plea the Court sentences you to one year in state prison with a concurrent credit time served of 20 days. The sentence in 06-32696 will run consecutive to the sentence in Count Number One and Three in 01-7975. In 06-32696 the Court will impose the standard court cost totalling $450.
THE CLERK: Judge, the amount is $458.
THE COURT: I am sorry. In both of those cases?
THE CLERK: F06-32696.
THE COURT: Okay, it is $458?
THE CLERK: Right.
THE COURT: One other thing we need to do and make sure that the record is clear about is this. Has anyone, including any lawyer promised you exactly to the day, to the week, to the month, to the year when you will be released from custody in either one of these cases?
THE DEFENDANT: No.
THE COURT: I can't hear you.
THE DEFENDANT: No, six. No, sir.
THE COURT: Has anybody, including any lawyer promised you exactly how much gain time the Department of Corrections would award you, if any, in each of these cases?
THE DEFENDANT: No.
THE COURT: All right. Since we have accepted the negotiated plea and completed what I believe to be a full plea colloquy at this time, if there is anyone who wants to speak either on behalf of the defendant or on behalf of the victim in this case, now would be the time to do it. And if it is going to be presented by the prosecution, if you could just tell us the name of the person before that person speaks.
MR. HIRSCH: Your Honor, may we be seated?
THE COURT: Could you say her name again?
MRS. LEVINE: Martha Sukkerd.
THE COURT: Okay. Ma'am, we are not going to put you under oath. I don't think that it is necessary for any of the witnesses at this point to be put under oath. I would ask you to please keep your voice up so that the court reporter could hear you and understand what it is that you are saying and within the realm of reason we are going to ask you please to state whatever it is that you want us to hear or the assembled people here to hear, okay. But you must keep your voice up so that the court reporter could hear you. May I ask you please to tell your name and spell your last name?
THE WITNESS: My name is Marta Sukkerd, S-U-K-K-E-R-D.
THE COURT: Thank you. What is it that you would like to say?
MRS. SUKKERD: Thank you very much. I was not prepared for this, so I apologize for
THE COURT: You don't have to apologize for anything.
MRS. SUKKERD: Thank you. This is Marie Montgomery. She was my aunt and this is a picture of her. She was my mom's only sister and my only aunt. My kid's loving friend and one of my son's godmother. I want to thank you, thank the Court and everybody involved for bringing this case to where we are right now. I want to say that you — I want to say that your behavior was despicable and not only did you drink you also drove and killed my aunt. You leave the scene of the crime and years later still, even later still was not willing to take responsibility for your actions. And I want you to know that I am absolutely positive that you heard about paying, about paying consequences for everything that you do in life. And the only person that I feel sorry for right now is your mother, because she is going to pay the consequences for your irresponsible behavior from now on. Thank you.
THE COURT: Thank you, ma'am.
MR. HIRSCH: Your Honor, if the Court please. The defendant's mother Genevieve Casey is present. May she speak?
THE COURT: All right. Ma'am, we would ask you, of course, to take your time and not rush and if you could keep your voice up please so that the court reporter is able to hear what it is that you have to say.
MRS. CASEY: First, first I would like to thank you for taking this case and initiating a plea bargain. Thank you for that. And I would like to tell you a little bit about my son.
I know what it is to have someone die in an accident because my mother was killed in a car accident five months before Sean was born and this accident actually happened a day after her anniversary of her death. So I know what it is to have someone die in a car accident. And I have spoken with the persons, I think it is her sister. I don't know who she is, but we have spoken. But Sean is a good man and he was so concerned about me through this whole case. He was always worrying about me. He said do not worry, don't worry about himself. Don't worry. Just worry about me. And he is a good boy. I should say good man. But it is going to be very hard because I won't be able to hug him. I live up in Massachusetts and even now just coming to see him I have come down a few times to visit him. It is behind glass and it is just, just, very hard because very, very hard because I mean he worked so hard in school and he was a good student. And he went to Georgetown and he got his Bachelor's Degree. And then they offered him a five years if he wanted to get his Masters in five years. And he called us and he said to us, I said, I said, "I don't know. I don't know how you are going to afford another year of college." And we said "just take it. They are going to give you five years. You get a Master's degree. You can do it." But he was concerned about the financial problems. But as it was Georgetown who gave him a scholarship because he volunteered to do interpreting for different people. But he was always a hard worker in high school and hard worker in college. He always worked summers and always worked jobs. He started working in McDonalds in 14 years old and he was the youngest person in the eastern seaboard. And I joked that if there was a burglary in the store they are going to have to call his mother to go call him to go in. But he is a good person and he is a hard working person and he is good hearted. He has friends that were sick and he helped them out. I mean, he would help anybody cut. That is just the nature that he is. So I just want to let you know and I don't know if you have any influence, any influence of what jail he goes to or what prison or what, but you know, I just, I just, I just wanted to -- I just wanted it to be easy for him and just for me.
THE COURT: The only influence that we would have is if you were living he re locally we could make a recommendation to corrections that once they finish processing him that he be housed as close to Dade County as possible, if that is something that works for you. If Mr. Hirsch would prepare such a document i would be happy to sign it. But the Department of Corrections does not have to follow that recommendation if they choose not to. But if that is something that you and the attorneys think that you would like to do, I am happy to sign such a recommendation.
These cases are probably the most difficult that we handle. We handle this business everyday dealing with criminals. The average person charged with this kind of crime ia generally not what we would categorize as the typical criminal or the violent habitual offender. They are basically people who did stupid things. And it rises more to the level of intentional than stupid when you get behind the wheel of a car and you are under the influence of anything, alcohol, medications whatever it might be. It is as if a really good person with a good heart and a good education and a good family closed their eyes and turned around and pointed a loaded gun down a street during a parade. It doesn't make him a bad person in the general scheme of things. It makes them a person who ultimately gets penalized for killing someone. They are every bit responsible as the person who intentionally fired a gun and killed somebody. It is a hard pill to swallow because all of us have probably been in this situation where we did something that we thought was stupid and nobody died from it. But these kinds of cases are different. That is why they are so hard for the defense lawyers because generally speaking if a person gets found guilty after a trial, someone who has never been involved in the criminal justice system finds themselves going to state prison. Unlike many other criminals this is not a party that is doing the crime and -- because you do the crime you get penalized and then you move on with your criminal activities. These are basically good people who have done bad things that have seriously effected other lives and of course their own family's lives because many times the people on the outside are the ones who suffer the most. You don't get a chance to hug him for however many years. This lady never gets a chance to hug her sister; ever; ever; ever.
So these are not fun cases by any stretch of the imagination. And notwithstanding the excellent representation of these lawyers, and the lawyers for the prosecution, you never know how these cases are going to come out. You know, it we would have been able to predict how they think it would come out, no matter how much the lawyers think that they have the strongest case or the weakest case, we would be winning a lottery every week. It doesn't happen like that. Because you have to talk to six people from the community about an event that costs somebody their life. And many times the resolution of the case is all be it a state prison resolution, it avoids the possible consequences of time that you would never be able to spend with him ever in your life because of the amount of time that conceivably he could have received if he was found guilty. So the resolution of these cases works in many respects and it brings closure to these cases as much as any case like this could have closure.
So I think that you don't have to thank me because I get paid either way, if we try the case or you negotiate the case, it doesn't make a difference to me. But I always have a responsibility to ask if there has been any dialogue. So if you call it initiating a plea negotiation, okay. I don't get involved in them. Whatever works out, works out. I am happy that they resolved it this way so that you all can move on. This other family can move on and eventually bring some closure to this case. But these are not the kind of cases that we enjoy dealing with because of the nature of the consequences and the nature of the law in this case and everybody is effected by it. And as professional as these lawyers are, yeah, they do take it personally. These lawyers take it personally too because it could happen to any one of us. The chances of any one of us getting murdered in a robbery and getting killed in some sort of a real homicide event is pretty slim. But the chances of one of us or our family members or our wives, our daughters, our mothers getting hit by a drunk driver, it sky rockets especially here in Dade County and that is why it is especially personal to the criminal justice system.
That being said I wish you the best and I wish this lady the best and move on with your lives and I want to thank the lawyers for their professionalism in this case.
MR. HIRSCH: Thank you, Judge.
MRS. LEVTNE: Thank you. Judge.
THE COURT: Are there any other further matters on this case, either the older case or the newer case, Mrs. Levine?
MRS. LEVINE: Nothing from the state, Your Honor.
MR. HIRSCH: Nothing from the defense.
THE CLERK: Just a clerical matter, even though he can't be sentenced on Count Two the computer is going to want to see something.
THE COURT: It has to be suspend entry of sentence.
THE CLERK: No problem.
THE COURT: Okay. Let me give the clerk this back. Thank you.
(Thereupon, court stood in recess.)
CERTIFICATE
COUNTY OF DADE )
STATE OF FLORIDA )
I, Angelina Porter, the undersigned, do hereby certify that the foregoing is a true and correct record of proceedings had in the case of the State of Florida Versus Sean Casey, Case No. F01-007975 before the Honorable Leonard Glick, Circuit Judge, at the time and place herein set forth.
Dated at Miami, County of Dade, State of Florida, this 5th day of January, 2006.
_________________________
ANGELINA PORTER
SHORTHAND REPORTER