Katherine Magbanua v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D19-1875

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KATHERINE MAGBANUA,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

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Petition for Writ of Certiorari—Original Jurisdiction.

May 31, 2019

ROWE, J.

Katherine Magbanua is being tried for the murder of Daniel

Markel. Magbanua seeks a writ of certiorari to quash an order

prohibiting her from deposing Wendi J. Adelson, Markel’s ex-wife

and a material witness. Magbanua contends that the order

departs from the essential requirements of the law because

Adelson did not provide good cause to prohibit her deposition. She

asserts that Adelson’s blanket invocation of her Fifth Amendment

privilege and claim that requiring her to appear for a deposition

would embarrass, harass, or inconvenience her did not support

issuance of a protective order. Magbanua argues that her inability

to depose Adelson significantly impairs her ability to prepare a

proper defense. Because Magbanua has not demonstrated

material injury that cannot be corrected on direct appeal, we are

constrained to dismiss the petition for lack of jurisdiction.

Background

In 2013, Markel and Adelson were engaged in a contentious

legal battle over the custody of their two minor children. Adelson

wanted to relocate with the children to South Florida, where her

family lived. But she moved the children from their home in

Tallahassee without court authorization. Markel obtained a court

order requiring that the children return to Tallahassee and

preventing their relocation. This outcome upset Adelson and her

family.

A year later, on July 18, 2014, Markel was sitting in his garage

in his parked car when he was shot in the head. Later that same

day, Adelson was interviewed for over eight hours by police.

Adelson indicated during the recorded interview that someone

could have committed the murder thinking they were helping her.

She also divulged that her brother, Charlie Adelson, joked about

hiring a hit man to kill Markel.

Over the next two years, investigators developed information

that Magbanua, Charlie Adelson’s former girlfriend, conspired

with others to procure the murder of Markel. Magbanua is alleged

to have enlisted Sigfredo Garcia (the father of Magbanua’s

children), and Luis Rivera (Garcia’s friend) to travel from Miami

to Tallahassee to kill Markel. During the investigation, police

obtained rental car receipts, GPS records showing the movements

of the rental car, video surveillance, and cell phone records

appearing to place Rivera and Garcia at the crime scene at the time

of the murder.

Investigators also intercepted communications before and

after the murder between Magbanua and Charlie Adelson and

between Charlie Adelson and Adelson’s mother (Donna Adelson).

Investigators learned that after the murder, Magbanua received

$13,000 in payments from entities connected to the Adelsons.

Magbanua also received over $56,000 in cash payments from

unknown sources that investigators believe were made in

connection with Magbanua’s role in procuring the murder.

Magbanua, Rivera, and Garcia were charged in Markel’s murder.

Rivera pleaded guilty to second-degree murder and agreed to

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cooperate with the State. Magbanua and Garcia are awaiting trial.

No member of the Adelson family has been charged.

Wendi Adelson, however, has been identified as a material

witness for the State in Magbanua’s trial. She is listed as a

Category A witness 1 and the State identified numerous items

connected with Adelson, including an iPad, photos of her vehicle,

cell phone records, credit card records, banking records, her

recorded police interview, and her signed consent to search form.

Six weeks before trial, Magbanua served Adelson with a subpoena

to appear for a discovery deposition.

Adelson moved for a protective order four weeks before the

scheduled trial date, stating that she intended to assert her Fifth

Amendment privilege in response “to any substantive questions”

asked during the deposition. Adelson admitted that she would

testify at trial if subpoenaed by the State because she would be

granted immunity for her testimony. She argued that good cause

existed for issuing the protective order because requiring her to

appear at a deposition would unnecessarily “inconvenience,

embarrass, and harass” her.

Magbanua opposed the motion for protective order and moved

to compel Adelson’s appearance at the deposition or, in the

alternative, to exclude Adelson’s testimony at trial. Magbanua

argued that Adelson did not show good cause to prevent the

deposition. As a material witness for the State, Adelson could not

assert a blanket Fifth Amendment privilege and avoid being

deposed. Instead, Magbanua argued that Adelson should be

compelled to appear and could then invoke her privilege on a

question-by-question basis.

1 Category A witnesses include eyewitnesses, alibi witnesses,

witnesses who were present when a statement was made by a

defendant or codefendant, and informant witnesses who offer

testimony concerning statements of the defendant about issues for

which the defendant is being tried. Fla. R. Crim. P.

3.220(b)(1)(A)(i) (identifying eight types of Category A witnesses).

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The trial court granted the protective order, ruling only that

requiring Adelson to assert her privilege as to individual questions

would “serve no useful purpose.” The order did not limit the scope

of the deposition, but rather prohibited the deposition altogether.

Adelson’s claims of inconvenience, embarrassment, or harassment

were not addressed. While the court denied Magbanua’s motion to

compel and motion to exclude Adelson’s trial testimony, it stated

the issue could be reconsidered at trial. Magbanua seeks certiorari

review of the orders.

Analysis

Certiorari is an extraordinary remedy that “should not be

used to circumvent the interlocutory appeal rule which authorizes

appeal from only a few types of non-final orders.” Jaye v. Royal

Saxon, Inc., 720 So. 2d 214, 214-15 (Fla. 1998) (quoting Martin-

Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)).

Appellate courts are limited in their ability to review non-final

orders by certiorari because “piecemeal review of nonfinal trial

court orders” impedes “the orderly administration of justice.” Id.

at 215. To obtain certiorari relief, Magbanua was required to show

that the trial court’s order departs from the essential requirements

of the law and that she has suffered a material injury that cannot

be corrected on direct appeal. Eutsay v. State, 103 So. 3d 181, 182

(Fla. 1st DCA 2012).

Magbanua argues that her inability to seek pretrial discovery

from Adelson significantly impairs her ability to prepare for trial

and the error in granting the protective order could not be

corrected on appeal. The purpose of the pretrial discovery rules is

to avoid trial by ambush. Scipio v. State, 928 So. 2d 1138, 1144

(Fla. 2006) (“Florida’s criminal discovery rules are designed to

prevent surprise by either the prosecution or the defense. Their

purpose is to facilitate a truthful fact-finding process.” (quoting

Kilpatrick v. State, 376 So. 2d 386, 388 (Fla. 1979))). Almost

certainly, the protective order barring the deposition of Adelson

deprives Magbanua of her right to question a material witness who

has indicated that she will testify on behalf of the prosecution. Any

questions that Magbanua may be able to pose to Adelson at trial

would be strictly limited to the scope of the direct examination by

the State. Patrick v. State, 104 So. 3d 1046, 1047 (Fla. 2012)

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(holding that cross-examination of an adverse witness is limited to

matters related to credibility or germane to direct examination).

And as the State indicated at oral argument, it intends to narrowly

tailor its questioning of Adelson to the identification of evidence

and the establishment of the motive for the murder, including the

timeline of the divorce and custody proceedings. Thus, Magbanua

would be given little latitude in her cross-examination of Adelson

because her questions would be limited to the narrow categories of

information the State elicits at trial.

If Magbanua was permitted to take Adelson’s deposition, she

would not be restricted in the questions that could be posed. And

even though Adelson could invoke her Fifth Amendment privilege

in response to any questions, the very invocation of the privilege

by Adelson in response to specific questions may inform

Magbanua’s trial preparation. Depending on how Adelson testifies

at trial, the blanket prohibition against Magbanua’s obtaining

pretrial discovery may very well result in the material injury that

Florida Rule of Criminal Procedure 3.220 was designed to prevent.

State v. Kuntsman, 643 So. 2d 1172, 1174 (Fla. 3d DCA 1994). But

material injury is not enough to support the granting of certiorari

relief. Instead, Magbanua was required to demonstrate that any

injury she may suffer could not be corrected on appeal.

Magbanua asserts that her inability to depose Adelson results

in a material injury that cannot be corrected on appeal because a

reviewing court could not determine how Adelson would have

answered questions posed to her during the deposition. Nor could

the impact of her answers on Magbanua’s trial preparation be

measured. In support of her argument, Magbanua cites decisions

in civil cases where certiorari relief was granted after a party was

prevented from obtaining pretrial discovery. The holdings in those

cases find irreparable harm when a party is prohibited from taking

the deposition of a material witness because there is no practical

way to determine after judgment what the testimony of the

witness would have been or how it would have affected the result

of the trial. See Solonina v. Artglass Int’l, LLC, 256 So. 3d 971

(Fla. 3d DCA 2018); Bush v. Schiavo, 866 So. 2d 136 (Fla. 2d DCA

2004).

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But Magbanua’s reliance on those decisions is misplaced. This

Court, on multiple occasions, has denied certiorari relief where a

criminal defendant sought review of an order barring pretrial

discovery, holding that any material injury could be remedied on

direct appeal. See Eutsay, 103 So. 3d at 183 (holding that the

State’s failure to timely disclose physical evidence was not

irreparable harm); McGahee v. State, 293 So. 2d 98 (Fla. 1st DCA

1974) (holding that the State’s apparent disregard of the discovery

rules was not irreparable harm); see also Segura v. State, 44 Fla.

L. Weekly D1210a (Fla. 1st DCA May 6, 2019) (holding that

exclusion of a third-party confession to several murders did not

constitute irreparable harm). Although an appeal which results in

a second trial may cause substantial delay and expense, and be

understandably frustrating for the accused, the families of the

victims, and witnesses, this Court has held “that the burden of

enduring a trial that may ultimately have to be repeated is not the

type of harm certiorari exists to prevent.” Eutsay, 103 So. 3d at

182. And as counsel for Magbanua conceded at oral argument, no

Florida court has granted certiorari relief to a criminal defendant

for a pretrial discovery violation by the State or following a pretrial

order denying the defendant the right to seek pretrial discovery

under the Rules of Criminal Procedure. Because Magbanua has

not demonstrated that any material injury she may suffer could

not be corrected on direct appeal, we are constrained to dismiss her

certiorari petition for lack of jurisdiction. Citizens Prop. Ins. Corp.

v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012).

Conclusion

Although Magbanua persuasively argues that the protective

order preventing any pretrial questioning of Adelson significantly

impairs her ability to prepare a defense, any material injury to

Magbanua may be corrected on direct appeal. 2 See Callins v. State,

747 So. 2d 453, 453 (Fla. 4th DCA 1999) (observing that a

2 Of course, nothing prevents the trial court from

reconsidering its order. Fla. R. Crim. P. 3.192 (“Nothing in this rule

precludes the trial court from exercising its inherent authority to

reconsider a ruling while the court has jurisdiction of the case.”).

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defendant always has a right of appeal from a conviction in which

he or she can attack any interlocutory order). Because we lack

jurisdiction, the petition for writ of certiorari is DISMISSED.

MAKAR, J., concurs with opinion; KELSEY, J., dissents with opinion.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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MAKAR, J., concurring with opinion.

I agree with Judge Kelsey’s view that a departure from the

essential requirements of law has been established but concur with

Judge Rowe’s view that the level of irreparable harm has not. I add

three points.

First, just as a blanket judicial order compelling a witness to

answer all deposition questions violates the witness’s

constitutional rights against self-incrimination, Magid v. Winter,

654 So. 2d 1037, 1038-39 (Fla. 4th DCA 1995); J.R. Brooks & Son,

Inc. v. Donovan, 592 So. 2d 795, 796 (Fla. 3d DCA 1992), so too can

a judicial order denying a criminal defendant the opportunity to

ask any questions in deposition of a material witness who pre-

emptively says she’ll invoke her right against self-incrimination.

The former is solely a Fifth Amendment problem; the latter is both

a Fifth and Sixth Amendment one that requires a careful judicial

balancing of constitutional principles.

For example, when a defendant seeks to compel a co-

defendant’s trial testimony, the defendant’s rights to confrontation

and compulsory process run head-long into the co-defendant’s

right against self-incrimination. In Landeverde v. State, 769 So. 2d

457, 465 (Fla. 4th DCA 2000), the Fourth District held that the

“trial court did not err in refusing to compel the co-defendants to

testify at [defendant’s] trial” because Fifth Amendment principles

prevailed over Sixth Amendment principles in that case. The court

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in Landeverde quoted approvingly from a Third District decision,

which stated that “when the Fifth Amendment guarantee collides

with the Sixth Amendment in circumstances such as these, the

Sixth Amendment right must yield because to require one to

incriminate himself in order to afford help to another would be

both unwise and unrealistic.” Walden v. State, 284 So. 2d 440, 441

(Fla. 3d DCA 1973) (emphasis added).

Here, a similar constitutional collision is in play, though the

context is a pretrial deposition to which criminal defendants are

entitled under Florida law. The norm for such depositions is for

trial judges to determine the rightfulness of a witness’s

“apprehensions of incrimination on a question-by-question basis”

rather than via blanket orders compelling or disallowing answers

to any questions. See, e.g., Magid, 654 So. 2d at 1039. Absent

unusual circumstances (not present here), this path is the one to

be followed. After all, a trial judge will eventually have to confront

the legitimacy of a claimed privilege against self-incrimination for

trial testimony as it is an issue of law and not one dependent upon

the assertions of parties or third parties. See, e.g., Belniak v.

McWilliams, 44 So. 3d 1282, 1284 (Fla. 2d DCA 2010) (“But it is

not the witness who determines whether the answers fall within

the privilege. Rather, ‘the determination of what answers may

incriminate or tend to incriminate cannot be left solely up to the

witness but is a matter which requires the exercise of the sound

discretion of the trial court under all the circumstances of the

case.’”) (citation omitted). The standard is that a “trial court may

properly require a witness to answer questions only if it is perfectly

clear that the witness is mistaken in his apprehensions and the

answers cannot possibly have a tendency to incriminate.” Magid,

654 So. 2d at 1039. Absent judicial parsing of a state witness’s

claimed self-incrimination privilege, a criminal defendant’s right

to depose and confront adverse witnesses is lost.

Second, the question of irreparable injury is a close one in this

case, as Judge Kelsey’s opinion makes evident. Magbanua says she

has no idea what Adelson may say at trial, but the State has

stipulated that it will only use Adelson’s trial testimony for very

limited purposes, such as the nature of her relationship with her

ex-husband. The scope and nature of Adelson’s trial testimony may

contextually form a basis for post-trial relief—or not—depending

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on how the matter is handled. Presumably the State and Adelson

will have agreed upon the questions she will answer in advance of

her trial testimony, Magbanua will be apprised of them, and the

trial court will hear and resolve objections and issues raised,

minimizing or eliminating potential prejudice to Magbanua. Plus,

the trial judge has denied Magbanua’s motion to compel or exclude

Adelson’s testimony “without prejudice to reassert [the motion] at

[the] time the witnesses [sic] testimony is presented at trial,”

which means he envisions another opportunity to ameliorate

Magbanua’s Sixth Amendment concerns. (Emphasis added).

Magbanua essentially seeks information from Adelson beyond that

which the State has confirmed it will use at trial. It is not at all

clear that Magbanua has a right to compel disclosure of such

information; if Adelson were a co-defendant, she would not.

Landeverde, 769 So. 2d at 465. At best, she has a limited but

important right to ask questions to which Adelson may respond by

invoking her constitutional privilege, subject to the trial judge’s

review and approval/disapproval of the privilege.

Finally, the writ of certiorari is an infrequent species of

appellate proceedings for criminal defendants as applied to

discovery matters. See, e.g., Kidder v. State, 117 So. 3d 1166, 1169

(Fla. 2d DCA 2013) (denying relief where defendant sought non-

disclosure of blood alcohol test on Fifth Amendment grounds). The

reason, in large measure, is the principle that the writ of certiorari

“is not a substitute for an appeal.” State v. Smith, 951 So. 2d 954,

956-57 (Fla. 1st DCA 2007) (noting that “general principles

governing the use of certiorari apply in criminal cases as well as

civil cases”). Our judicial system has set the bar higher on criminal

discovery matters lest “every pretrial order in every criminal case

would be subject to review by certiorari.” Id. at 958. For this

reason, the panel is constrained to according relief only where the

irreparable nature of the harm is established.

KELSEY, J., dissenting.

In this context, the law clearly requires that the Fifth

Amendment privilege be asserted as to specific questions, rather

than being asserted as a blanket refusal to testify as was the case

here. We should grant the petition and quash the protective order,

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because these facts establish both a departure from the essential

requirements of law and irreparable harm.

Alternatively, we should dismiss the petition as premature.

See Charles v. State, 193 So. 3d 31, 32 (Fla. 3d DCA 2016)

(dismissing certiorari petition as premature where challenged

reports of non-testifying experts had not yet been completed or

reviewed in camera); Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d

336, 339-40 (Fla. 5th DCA 2005) (denying certiorari as premature

where order simply required documents be submitted to court for

in camera review); Travelers Indem. Co. v. Fields, 262 So. 2d 222,

223-24 (Fla. 1st DCA 1972) (denying certiorari as premature where

trial court had not yet examined disputed discovery documents in

camera and ruled on whether they should be produced). If we

granted the petition or dismissed it as premature, the trial court

could then follow precedent requiring Adelson to appear at

deposition and assert the privilege on a question-by-question basis,

with the court determining which unanswered questions she must

answer. Doing so would eliminate this issue as a potential new-trial

argument, potentially saving years of time and untold dollars in

public and private resources. Looking at the issue from the other

end of the process, the deprivation of pretrial discovery has

resulted in the granting of new trials. See, e.g., Valle v. State, 394

So. 2d 1004, 1008 (Fla. 1981) (reversing for new trial because

under Florida Rule of Criminal Procedure 3.220, requiring State

to disclose all witnesses, “It necessarily follows that the trial court

must allow defense counsel the time to interview these persons to

properly prepare for trial.”). As the majority notes, the trial court

has the continuing authority to do so regardless of the disposition

here. Without any such disposition on the merits, however, I must

respectfully dissent.

Departure from the Essential Requirements of Law

On the facts presented here, Adelson’s blanket invocation of

the Fifth Amendment right against self-incrimination was

improper, and the trial court departed from the essential

requirements of the law in allowing it. A witness must invoke the

privilege question by question, so the trial court can determine as

to each question whether the answer would endanger the witness’s

rights. See United States v. Thornton, 733 F.2d 121, 125 (D.C. Cir.

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1984); Commitment of Smith v. State, 827 So. 2d 1026, 1029 (Fla.

2d DCA 2002) (holding that a deponent must make a specific

objection to a particular question instead of asserting a blanket

privilege). An exception to this requirement exists if there is a

reasonable basis to believe that answering any relevant questions

may endanger the witness. Thornton, 733 F.2d at 126.

Here, however, the record does not demonstrate any such

danger to Adelson, nor that she alleged any such danger. The trial

court did not hold a hearing on the motion for a protective order,

and Adelson presented no argument to support her bald assertion

that any substantive question asked at deposition would lead to

incriminating evidence requiring Adelson to invoke her Fifth

Amendment privilege. Under these facts, Adelson did not

demonstrate good cause to avoid the deposition. Instead, to

properly invoke her Fifth Amendment privilege against self-

incrimination, Adelson was required to appear at the deposition

and assert the privilege on a question-by-question basis. The trial

court’s failure to require her to do so was a departure from the

essential requirements of law.

Irreparable Harm

I agree with the majority that orders denying discovery rarely

constitute irreparable harm. But the analysis is different when the

discovery at issue is the deposition of a material witness, the denial

of which constitutes irreparable harm. Akhnoukh v. Benvenuto,

219 So. 3d 96, 98-99 (Fla. 2d DCA 2017) (holding denial of right to

depose a material witness constitutes irreparable harm); Nucci v.

Simmons, 20 So. 3d 388, 390 (Fla. 2d DCA 2009) (recognizing

irreparable harm occurs upon denial of right to take testimony of

material witness, because “there would be no practical way to

determine after judgment what the testimony would be or how it

would affect the result” (quoting Medero v. Fla. Power & Light Co.,

658 So. 2d 566, 567 (Fla. 3d DCA 1995))). Irreparable harm exists

here because the trial court precluded in its entirety the deposition

of a uniquely central, material witness. See Nucci, 20 So. 3d at 390

(defining material witness as one who possesses information going

to some fact affecting the merits of the cause and about which no

other witness might testify).

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As the majority correctly notes, and as both parties have

indicated, there do not appear to be any criminal cases applying

the rule that denial of the right to depose a material witness

constitutes irreparable harm for purposes of certiorari jurisdiction.

But the majority cites only cases involving exclusion of a piece of

evidence, none depriving a party entirely of the ability to depose a

material witness, none depriving a criminal defendant of

constitutional rights secured by the right of discovery under

Florida Rule of Criminal Procedure 3.220. In this context, I believe

the departure from the essential requirements of law that clearly

has occurred also serves to establish irreparable harm. No one

except perhaps the witness herself knows exactly the content and

parameters of the testimony she is willing to give, and she can

assert her Fifth-Amendment privilege on a question-by-question

basis, thus protecting both her constitutional rights and

Magbanua’s rights. But, if the deposition does not occur before

trial, and Magbanua is convicted, it becomes impossible to

determine what might have been—placing Magbanua beyond

relief. We cannot give her the right of pre-trial preparation after

trial. We have, and should exercise, certiorari jurisdiction. See

Nucci, 20 So. 3d at 390. I would therefore grant the petition.

_____________________________

Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for

Petitioner.

Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee

Bureau Chief, Criminal Appeals; and Sharon S. Traxler, Assistant

Attorney General, Tallahassee, for Respondent State of Florida.

John F. Lauro and Michael G. Califano of Lauro Law Firm, Tampa,

for Non-Party Wendi J. Adelson.

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