Answer Brief of Appellee.

7/28/2019 Answer Brief of Appellee.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDASECOND DISTRICT

JEFFREY TESTERMAN,

Appellant,

v. Case No. 2D13-1014

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURTIN AND FOR HILLSBOROUGH COUNTY

STATE OF FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDIATTORNEY GENERAL

CERESE CRAWFORD TAYLORAssistant Attorney GeneralFlorida Bar No. 0990760Concourse Center 4

3507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)[email protected]

[email protected]

Assistant Attorney General
mailto:[email protected]:[email protected]


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TABLE OF CONTENTS

PAGE NO.

SUMMARY OF THE ARGUMENT........................................ 8ARGUMENT....................................................... 9

ISSUEI ................................................... 9

WHETHER THE COURT PROPERLY APPLIED SECTION

942.02, FLORIDA STATUTES?(As stated by

Appellee)............................................ 9

ISSUEII ................................................. 13

WHETHER THE TRIALCOURT PROPERLY DETERMINED

THAT FLORIDAS REPORTERS PRIVILEGE DID NOT

SHIELD APPELLANT FROM TESTIFYING? (As stated

by Appellee)........................................ 13

CERTIFICATE OF SERVICE........................................ 21CERTIFICATE OF FONT COMPLIANCE................................ 21


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TABLE OF CITATIONS

CasesCity of Akron v. Cripple,

2003 WL 21697751 (Ohio Ct. App. 2003)......................... 19

Clutchette v. Rushen,

770 F.2d 1469, 1471 (9th Cir.1985)............................ 17

Delit v. State,

583 So. 2d 1083 (Fla. 4th DCA 1991) ........................... 10

In re April 7, 1999 Grand Jury Proceedings,

749 N.E.2d 325 (Ohio Ct. App. 2000)........................... 19

Kastigar v. United States,406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)....... 19

News-Journal Corporation vs. Carson,

741 So. 2d 572 (Fla. 5th DCA 1999)............................ 15

Seo v. Kim,

2002 WL 31445224, 30 Media L. Rep. 1799 (Fla.Cir.Ct. 2002).... 17

Skakel v. State,

738 So. 2d 68 (Fla. 4th DCA 1999) ............................. 10

State v. Davis,720 So. 2d 220 (Fla. 1998).................................... 15

State v. Famiglietti,

817 So. 2d 901 (Fla. 3d DCA 2002)............................. 14

State v. Roberts,

2005 WL 23358 (Ohio App. 8 Dist. 2005)........................ 12

Ventura v. the Cincinnati Enquirer,

396 F.3d 784 (6th Cir. 2005) .................................. 19

Weatherford v. Bursey,429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).............. 17

Wilensky v. Gooding,


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2003 WL 21361276 (Fla. 7th Jud. Cir. Ct. 2003). ............... 15

WTVJ-NBC 6 v. Shehadeh,

56 So. 3d 104 (Fla. 3d DCA 2011).............................. 14

Other AuthoritiesFla. R. App. P. 9.210(a)(2)................................... 19


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STATEMENT OF THE CASE AND FACTS

Appellee acknowledges the Appellants statement of the case

and facts and includes the following additions and/or correc-

tions:

He order in this case directs that Appellant honor the

State of Ohios subpoena and appear at the trial of the defend-

ant known as Bobby Thompson. (R. 30). The State of Ohio has

charged Thompson with twenty-four criminal offenses arising

from his operation of the United States Navy Veterans Associa-

tion charity. (the USNVA) (R. 30).

At the hearing held pursuant to Rule 942.02, Florida Stat-

utes, Appellants counsel argued that the court must consider

and apply Floridas reporters privilege as well as applying the

test under section 942.02. (Hrg. Tr., p. 55-58). The court re-

ceived testimony from Assistant Attorney General Brad Tammaro

who explained that Testerman was an eyewitness to the crime of

identity fraud. (Hrg. Tr., p. 60).

Mr. Tammaro stated that:

The key factor that must be determined is

the identification of the defendant as Bobby

Thompson, and as Bobby Thompson he ran . .

.the fake charity. Mr. Testerman. ..overheard the defendant identify himself as

Bobby Thompson. He then had a discussion

with him where he identified him [sic] Mr.


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Thompson. . . .[Ultimately Thompson entered]

the duplex where he was running that associ-

ation.

(Hrg. Tr., p 60-61). Testerman observed Thompson en-

ter the charitys headquarters and saw him wearing a

USNVA hat. (Hrg. Tr., p. 62).

Assistant Attorney General Tammaro further explained that

the RICO and identity theft charges hinge on proof that the de-

fendant was using the Bobby Thompson identity. (Hrg. Tr., p 61).

Counsel showed how Testermans evidence was unique and that oth-

er witnesses were not available. He related that one cohort,

Blanca Contreras, flat out refused to testify. (Hrg. Tr., p

62). Contreras daughters were claimed memory lapses. (Hrg.

Tr., p 62). No other witness, aside from Appellant, could place

Thompson in the duplex that served as headquarters for the

fraudulent charity. (Hrg. Tr., p 62).

Following the hearing, the court entered its order requir-

ing Appellant to comply with the subpoena. (R. 30). The court

conducted an analysis pursuant to section 942.02 and concluded

that Testermans evidence was both material and necessary to the

state of Ohios criminal case against Thompson. (R. 32-33). The

court further found that Testermans one day appearance at the

Ohio trial did not present an undue hardship. (R. 33).


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Finally, the court addressed Appellants reporters privi-

lege argument under section 90.515, Florida Statutes. The court

concluded that Floridas reporters privilege did not shield

Testerman from identifying Thompson. (R. 34). The court ex-

plained:

While Testerman is correct in asserting that

the Florida Supreme Court has enumerated a

qualified reporters privilege, the privi-

lege does not apply to eyewitness observa-

tions of physical evidence [] of a crime,

even if the event occurred while actively

gathering the news.

(R. 34).

Having concluded that Testermans observations of Cody

misrepresenting himself as Bobby Thompson constitutes eyewitness

observations of the crime of identity fraud, the court ruled

that there would be no undue hardship because the testimony

would not be in regard in to knowledge shielded b the qualified

reporters privilege. (R. 34).


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SUMMARY OF THE ARGUMENT

The trial court properly concluded that Appellant was com-

pelled to comply with an out of state subpoena pursuant to sec-

tion 942.02, Florida Statutes (2012).


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ARGUMENT

ISSUE I

WHETHER THE COURT PROPERLY APPLIED SECTION942.02, FLORIDA STATUTES?(As stated by Ap-

pellee).

The case before this Court involves two distinct legal ar-

guments arising from Appellants objection to his subpoena from

an out of State entity; namely, the State of Ohio. The first

issue is a challenge to the trial courts ruling that Testerman

must comply with the State of Ohios subpoena.

Section 942.02 requires a trial court, once in receipt of a

certification from a sister state that a Florida citizen is a

material and necessary witness to a criminal case then pending

in that sister state, to set a hearing at which the citizen wit-

ness will appear. At the hearing, the court will consider

whether the citizen witness is material and necessary, that it

will not cause undue hardship to the witness to be compelled to

attend and testify in the prosecution. . . and that the laws of

the state in which the prosecution is pending, or grand jury in-

vestigation has commenced or is about to commence, will give to

the witness protection from arrest and the service of civil and

criminal process. 942.02(2), Fla. State. (2012). Once the

court makes these affirmative findings, the judge shall issue a


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summons, with a copy of the certificate attached, directing the

witness to attend and testify in the court where the prosecution

is pending. 942.02(2), Fla. State. (2012).

Without question, the trial court followed this procedure.

There was no rubber stamping the Ohio courts subpoena. Delit

v. State, 583 So. 2d 1083 (Fla. 4th DCA 1991). Rather, the court

heard argument from the parties and conducted an evidentiary

hearing where it received testimony from Brad Tammaro, an Assis-

tant attorney general for the State of Ohio. Thus, the question

before this Court is whether the courts substantive ruling was

an abuse of discretion. Skakel v. State, 738 So. 2d 68 (Fla. 4th

DCA 1999). The evidence shows that it did not.

Appellant challenges the elements of materiality and neces-

sity by positioning Testerman as the victim and then construing

Ohios false identity law to challenge whether using a false

name with a newspaper reporter is even a crime at all. This

argument, in an attempt to limit the value of Testermans testi-

mony, reads the statute too narrowly.

Ohio Criminal Statute RC 2913.49 criminalizes the use of a

false identity. The statute provides:

No person, without the express or implied

consent of the other person, shall use, ob-

tain, or possess any personal identifying


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information of another person with intent to

do either of the following:

(1) Hold the person out to be the other per-

son;

(2) Represent the other person's personal

identifying information as the person's own

personal identifying information.

The statutes plain language reflects that target of the

crime need not be the witness it. In this case, the defendant

known as Bobby Thompson used his false identity to perpetrate an

elaborate multi-state fraud using a phony military veterans

charity. Testerman overheard the criminal defendant identify

himself as Bobby Thompson. Testerman observed Thompson enter

the building identified as headquarters for the fraudulent navy

veterans charity. He witnessed Testerman wearing a baseball

cap bearing the logo of the fraudulent veterans charity.

Testermans evidence supports the charged offense and forges a

connection between the other charged offenses.

Further section 2913.49 does not criminalize the conduct

based on the victims identity. Thus, giving of a false name,

under Ohio law, is a criminal act without regard for the entity

that receives the information. Appellants efforts, then, to

argue the [in]conceivab[ility] that the false identification


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would be criminalized when made to a reporter, are unavailing.

It is the fact of the false representation that Ohio criminaliz-

es. State v. Roberts, 2005 WL 23358 (Ohio App. 8 Dist.

2005)(There is no requirement in the statute that a defendant's

use of another's personal information result in a theft.).

It is the fact of the false representation that Testerman per-

sonally witnessed. In this regard, the court did not abuse its

discretion in concluding that Testermans evidence was both ma-

terial and necessary.

Testermans eyewitness receipt of Thompsons false identi-

fication also distinguishes this case from the facts of Delit.

Where in that case there was speculative allegations of relevant

information, in this case, Testerman witnessed a completed of-

fense under Ohio law. Based on this evidence, the trial court

correctly determined that Testermans evidence was both material

and necessary to the State of Ohios prosecution. The court did

not abuse its discretion in ruling that Testerman must comply

with the State of Ohios subpoena.

An important parenthetical to the States analysis is the

fact that the trial court actually considered Appellants re-

porter privilege argument pursuant to section 90.5015, Florida

Statutes. At the subpoena hearing Appellants counsel argued,


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as counsel does before this Court, that the State of Ohios re-

porters privilege is different and that the question of privi-

lege, as well as application of the foreign subpoena statute,

must be addressed. The State argued that the only question be-

fore the court was materiality, necessity and undue hardship un-

der section 942.02.

Having received argument on this point, the court included

in its written order an additional analysis under the reporters

privilege. Applying the plain language of section 90.5015, the

court found that the privilege did not apply, as Appellants

testimony pertained to his eyewitness evidence of a crime. Ac-

cordingly, the court applied Floridas privilege law, as argued

for by Appellant, but found factually that it did not apply.

This issue does not entitle Appellant to relief.

ISSUE II

WHETHER THE TRIALCOURT PROPERLY DETERMINEDTHAT FLORIDAS REPORTERS PRIVILEGE DID NOT

SHIELD APPELLANT FROM TESTIFYING? (As statedby Appellee).

Appellant continues his assault on the trial courts evi-

dentiary ruling by arguing that he was privileged from disclos-

ing the testimony sought by the State of Ohio.

A. Section 90.5015- Floridas journalist privilege.Section 90.5015 was enacted in 1998 to protect profes-


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sional journalists against the disclosure of sources and infor-

mation obtained while actively gathering news. WTVJ-NBC 6 v.

Shehadeh, 56 So. 3d 104 (Fla. 3d DCA 2011). This privilege is

qualified and not absolute. Id. at 106 (The statutory journal-

ist's privilege and its common law antecedents are intended to

provide a limited degree of protection for a reporter's sources

of information.); State v. Famiglietti, 817 So. 2d 901 (Fla. 3d

DCA 2002)(noting qualified nature of privilege). It does not

provide a complete blanket of protection over all journalistic

activity.

The privileges qualified nature can be overcome by a show-

ing that:

(a) The information is relevant and material

to unresolved issues that have been raised

in the proceeding for which the information

is sought;

(b) The information cannot be obtained from

alternative sources; and

(c) A compelling interest exists for requir-

ing disclosure of the information.

90.5015(2), Fla. Stat. (2012).

The present case is not a case in which a journalist is be-

ing compelled to testify regarding information obtained in the

process of pursuing newsgathering activities. Jeffrey Testerman


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is a fact witness to an of identity fraud under Ohio law. This

fraud is one component in a string of crimes committed by the

defendant known as Bobby Thompson and being prosecuted by the

State of Ohio.

The man identified as Thompson was not a source for a news-

paper story he was the story. Thompson was the subject of the

Times investigative reporting into Thompsons criminal activi-

ties. During the course of Testermans interaction with and ob-

servation of Thompson, Testerman saw his commit a completed of-

fense of identity fraud. This distinguishes this case from cas-

es where a reporter is privileged not to divulge non-criminal

activity observing during the process of newsgathering.

Wilensky v. Gooding, 2003 WL 21361276 (Fla. 7th Jud. Cir. Ct.

2003).

The plain language of section 90.5015 exempts from the

privilege criminal acts actually witnessed by a reporter. Ac-

cordingly, the qualified privilege under section 90.5015 does

not apply to shield Appellant from testifying. News-Journal Cor-

poration vs. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999) citing

State v. Davis, 720 So. 2d 220 (Fla. 1998)(the Legislature de-

cided to exclude from the scope of the privilege . . . physical

evidence of a crime, eyewitness observations of a crime, and


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visual or audio recording of crimes. Qualified journalist's

privilege does not apply to physical evidence of crimes or eye-

witness observations of crimes.). The trial courts ruling on

this point was correct.

Even if the privilege applied in this case, the burden to

overcome the privilege was satisfied. Section 90.5015(2) con-

cerns itself with the relevance and materiality of the infor-

mation sought from a reporter. The statute also requires the

party seeking the information to show a compelling interest for

its disclosure and its unavailability from other resources.

In this case, Testerman observed a completed crime which,

additionally, related to other charged offenses. Evidence of

elements of a crime is both relevant and material to its prose-

cution. Such information permits the State to prosecute its

criminal laws, thereby providing a compelling State interest for

the informations release. Finally, this instance of the com-

pleted criminal act occurred in a place and time at which only

Testerman and Thompson were present. This fact makes his evi-

dence highly material and relevant to the charged offense of

identity fraud.

The State of Ohio is not equivocal in valuing Testermans

evidence. Seo v. Kim, 2002 WL 31445224, 30 Media L. Rep. 1799


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(Fla. Cir. Ct. 2002) (allegation that [t]he videotaped inter-

view of Plaintiff/Counterdefendant may be useful in proving

Plaintiff's/Counterdefendant's inconsistencies was insufficient

to establish a compelling need for reporters testimo-

ny)(emphasis in original). Testermans position as the sole

witness makes his testimony unique, invaluable and material to

the prosecution. The information cannot be obtained from any

source but Testerman.

The list of other witnesses to Appellants criminal actions

reflects the vastness and intricacies of Thompsons criminal en-

terprise. While Appellant offers a long list of potential wit-

nesses, he fails to acknowledge several factors which make their

testimony inferior to Testermans evidence. First, only

Testerman was present on the day this particular charged offense

was committed. Further, many of them may be protected by Con-

stitutional protections equally compelling to that asserted by

Testerman; namely the Constitutional protection against self-

incrimination and the attorney-client privilege. Clutchette v.

Rushen, 770 F.2d 1469, 1471 (9th Cir.1985) (citing Weatherford

v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30

(1977))(noting that although the attorney-client privilege is

not a constitutional right, [i]n some situations, ... govern-


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ment interference with the confidential relationship between a

defendant and his counsel may implicate Sixth Amendment

rights.). Accordingly, despite the string of allegedly poten-

tial witnesses Appellant identifies, Testermans information is

necessary to support Ohios compelling need to subpoena his tes-

timony at Thompsons trial.

The very fact that the majority of the potential witnesses

identified by Appellant have bias, credibility and privilege is-

sues makes Testermans evidence all the more compelling. Appel-

lee is not merely arguing that Testermans neutral status makes

him a better witness. Rather, the State is arguing that Thomp-

son committed a laundry list of crimes, one of which Testerman

personally observed. In additional to this completed crime,

Testermans evidence provides an element or elements of addi-

tional offenses. Compelling Testermans evidence of this crime

does not transform him into a governmental investigatory arm.

Appellants Initial Brief citing State v. Davis, 720. 2d 220

(Fla. 1998), at p. 39. This evidence reflects that the privi-

lege must give way in light of the legitimate and compelling

need demonstrated by the Ohio State prosecutors office.

B. Difference in Florida and Ohio Reporters Privilege

As previously argued, the trial court in this case applied


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Floridas privilege law in making its decision. Thus, any dis-

tinction between Florida and Ohios laws is irrelevant. The

trial court applied the plain language of Floridas privilege to

the facts of this case and correctly determined that Testerman

was being subpoenaed as an eyewitness to a crime, not to divulge

his newsgathering information or sources. The trial court hav-

ing lawfully applied Floridas statutes, any differences between

that and other statutes should not effect the integrity of the

courts ruling.

Nevertheless, the State observes that the crux of Ohios

reporters shield law seems to share with Floridas law the ad-

monition that reporters are not shielded from testifying regard-

ing criminal acts which they personally observed. City of Akron

v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003); see also Ven-

tura v. the Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005); In

re April 7, 1999 Grand Jury Proceedings, 749 N.E.2d 325 (Ohio

Ct. App. 2000).

[T]he public has a right to every man's evidence.

Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32

L.Ed.2d 212 (1972)(internal citation omitted). This rule ex-

tends to journalists who are eyewitnesses to a criminal act.

When a reporter is a fact witness he does not have the privilege


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to refuse to testify, because there is no intrusion into the

press newsgathering function. State v. Davis, 720 So. 2d at

227. Thus, the trial court issuance of the subpoena compelling

Testerman to give evidence in the State of Ohio does not violate

Floridas reporters privilege. This issue does not entitle Ap-

pellant to relief.


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CONCLUSION

Appellant respectfully requests that this Court affirm the

trial courts ruling directing Appellant to comply with the Ohio

subpoena.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished by email to Allison Steele, Esq., Rahdert

Steele Reynolds & Driscoll, P.A., [email protected] this 5th day

of June, 2013.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

Respectfully submitted,

PAMELA JO BONDIATTORNEY GENERAL

s/ Cerese Crawford Taylor

CERESE CRAWFORD TAYLORAssistant Attorney GeneralFlorida Bar No. 0990760Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013

(813)287-7900Fax (813)[email protected]

[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]

Answer Brief of Appellee.

Documents

Transcript of Answer Brief of Appellee.