Petition for Writ of Certiorari — John S. Cammalleri, Petitioner v. Florida

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN CAMMALLERI,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari

to the Florida Fourth District Court of Appeal

_________________________________________________

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

_________________________________________________

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345/fax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

TABLE OF CONTENTS

Document

1.

Page

November 29, 2018, order of the Florida

Fourth District Court of Appeal. . . . A-6

2.

January 23, 2019, order of the Florida

Fourth District Court of Appeal. . . . A-8

3.

September 30, 2016, judgment of the

Nineteenth Judicial Circuit of

Florida. . . . . . . . . . . . . . . . . . . . . . . A-15

4.

September 30, 2016, sentence of the

Nineteenth Judicial Circuit of

Florida. . . . . . . . . . . . . . . . . . . . . . . A-18

5.

May 11, 2015, Defendant’s Motion to

Suppress a Confession or Admission

Illegally Obtained. . . . . . . . . . . . . . A-24

A-2

6.

Excerpt of Transcript of December 27, 2013,

Law Enforcement Interview at

residence, page 37. . . . . . . . . . . . . . A-55

7.

Excerpt of Transcript of December 27, 2013,

Law Enforcement Interview/Lie

Detector Test at Sheriff’s Office,

page 37. . . . . . . . . . . . . . . . . . . . . . . A-56

8.

Excerpt of Transcript of December 27, 2013,

Law Enforcement Interview/Lie

Detector Test at Sheriff’s Office,

pages 46-47.. . . . . . . . . . . . . . . . . . . A-58

9.

Excerpt of Transcript of December 27, 2013,

Law Enforcement Interview/Lie

Detector Test at Sheriff’s Office,

page 61. . . . . . . . . . . . . . . . . . . . . . . A-61

A-3

10.

Excerpt of Transcript of December 27, 2013,

Law Enforcement Interview/Lie

Detector Test at Sheriff’s Office,

pages 66-67.. . . . . . . . . . . . . . . . . . . A-63

11.

Excerpt of Transcript of January 14, 2014,

Law Enforcement Interview at

residence, page 4. . . . . . . . . . . . . . . A-66

12.

Excerpt of Transcript of January 14, 2014,

Law Enforcement Interview at

residence, pages 12-13. . . . . . . . . . . A-68

13.

Excerpt of Transcript of January 14, 2014,

Law Enforcement Interview at

residence, pages 15-17. . . . . . . . . . . A-69

14.

Excerpt of Transcript of January 14, 2014,

Law Enforcement Interview at

residence, pages 20-23. . . . . . . . . . . A-73

A-4

15.

Excerpt of Transcript of January 14, 2014,

Law Enforcement Interview at

residence, page 26. . . . . . . . . . . . . . A-79

16.

July 25, 2015, Order Denying Defendant’s

Motion to Suppress Confession(s)

or Admission(s). . . . . . . . . . . . . . . . A-81

A-5

DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA

FOURTH DISTRICT

JOHN A. CAMMALLERI,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-3518

[November 29, 2018]

Appeal

from

the

Circuit

Court

for

the

Nineteenth Judicial Circuit, Indian River County;

Cynthia

L.

Cox,

Judge;

L.T.

Case

No.

2014-CF-000067-A.

Michael Ufferman of Michael Ufferman Law

Firm, P.A., Tallahassee, for appellant.

Pamela

Jo

Bondi,

A-6

Attorney

General,

Tallahassee, and Georgina Jimenez-Orosa, Senior

Assistant Attorney General, West Palm Beach, for

appellee.

PER CURIAM.

Affirmed.

GROSS, MAY, JJ., and CARACUZZO, CHERYL,

Associate Judge, concur.

*

*

*

Not final until disposition of timely filed motion

for rehearing.

A-7

DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA

FOURTH DISTRICT

JOHN S. CAMMALLERI,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-3518

[January 23, 2019]

Appeal

from

the

Circuit

Court

for

the

Nineteenth Judicial Circuit, Indian River County;

Cynthia

L.

Cox,

Judge;

L.T.

Case

No.

2014-CF-000067-A.

Michael Ufferman of Michael Ufferman Law

Firm, P.A., Tallahassee, for appellant.

Ashley

B.

Moody,

A-8

Attorney

General,

Tallahassee, and Georgina Jimenez-Orosa, Senior

Assistant Attorney General, West Palm Beach, for

appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing as it

pertains to the final judgment imposing civil lien and

affirm appellant’s conviction and sentence in all

respects. We vacate our prior opinion and substitute

the following.

After appellant was convicted and sentenced for

one count of sexual battery on a child under 12, the

trial court entered a final judgment imposing civil lien,

which stated:

THIS MATTER having come before the

Court on September 30, 2016 pursuant to

Florida Statute Section 960.293(2)(b) and

A-9

finding that the Defendant has been

convicted of an offense other than a

capital or life felony and that damages

are

assessed

at

$50

per

day

of

incarceration, it is hereby ORDERED

AND ADJUDGED that Indian River

County (Sheriff) shall recover from the

Defendant damages of $49,500.00, and

State of Florida (DOC) shall recover from

the Defendant damages of $200,500.00

which shall bear interest at the statutory

rate pursuant to Section 55.03, Florida

Statutes, for all of which let execution

issue.

(Emphasis added). Thereafter, appellant filed a motion

pursuant to Florida Rule of Criminal Procedure

3.800(b)(2), asserting that the final judgment imposing

A-10

civil lien should be amended to (1) correctly reflect that

the conviction was for a capital or life felony, rather

than an offense other than a capital or life felony, and

(2) remove the $50 per day of incarceration language.

Because the trial court did not rule on the

motion within the sixty-day time period,1 appellant

moved for rehearing on the pending rule 3.800(b)

motion pursuant to Florida Rule of Criminal Procedure

3.800(b)(l)(B). Forty-two days after the motion for

rehearing was filed, the trial court ordered an

expedited responsive pleading on the rule 3 .800(b)(2)

motion. In response, the state conceded the judgment

should be amended to correctly reflect that appellant

was convicted of a capital felony and that $250,000 be

assessed as liquidated damages for the cost of

1 According to the trial court, the motion was e-filed,

but “never served and/ or provided to the court.”

A-11

incarceration. The trial court granted appellant’s rule

3.800(b) motion and amended the first paragraph of

the final judgment to state:

THIS MATTER having come before the

Court on September 30, 2016 pursuant to

Florida Statute Section 960.293(2)(b) and

finding that the Defendant has been

convicted of a capital or felony offense,

and that damages are assessed as follows.

Although appellant acknowledges on appeal that

the trial court granted the rule 3.800(b) motion and

entered an amended final judgment with the

aforementioned changes, he notes that the order was

rendered after the expiration of the applicable time

periods set forth in rule 3.800(b).

“Florida Rule of Criminal Procedure 3.800(b)

expressly provides that the trial court must rule on a

A-12

motion to correct sentencing error within sixty days of

filing or the motion is deemed denied.” Wilson v. State,

846 So. 2d 1201, 1203 (Fla. 4th DCA 2003) (citing Fla.

R. Crim. P. 3.800(b). “Once the sixty days has passed

with no action on the motion, the trial court’s

jurisdiction ends.” Id. Rule 3.800(b)(2)(B) further

provides that the trial court must rule on a timely

motion for rehearing within 40 days from the date of

the order of which rehearing is sought or the motion is

deemed denied.

In this case, the trial court did not rule on the

rule 3.800(b) motion within 60 days, nor did it rule on

the motion for rehearing within 40 days. Accordingly,

the trial court lacked jurisdiction to grant the 3.800(b)

motion and the subsequent amended final judgment is

deemed a nullity.

We therefore remand for entry of a corrected,

A-13

amended final judgment imposing civil lien in

accordance with this opinion.

Affirmed in part, reversed in part, and

remanded.

GROSS, MAY, JJ., and CARACUZZO, CHERYL,

Associate Judge, concur.

*

*

A-14

*

In the Circuit Court,

Nineteenth Judicial Circuit

In and for Indian River County, Florida

Division: Felony

Case Number(s):

312014CF000067AXXXXX

State of Florida

vs.

JOHN S CAMMALLERI

Defendant.

JUDGMENT

Defendant’s Attorney

BOBBY GUTTRIDGE

State’s Attorney

WILLIAM LONG,

The above Defendant, being personally before

this Court and having:

X

been tried and found guilty by Jury/by

Court of the following crime(s).

A-15

_____ entered a plea of guilty to the following

crime(s)

_____ entered a plea of nolo contendere to the

following crime(s)

Count

1

Crime

SEXUAL

Offense

Deg

OBTS

Statute

of

#

Number

Crime

794.011(2)

F

BATTERY

C

310109

4919

ON A

CHILD

UNDER

12 BY

PERPETRATOR

18 OR

OLDER

A-16

X

and no cause being shown why the Defendant

should not be adjudicated guilty, IT IS

ORDERED that the Defendant is hereby

ADJUDICATED GUILTY of the above crime(s).

X

and being a qualified offender pursuant to s.

943.325, the Defendant shall be required to

submit DNA samples as required by law.

and good cause being shown; IT IS ORDERED

THAT

ADJUDICATION

OF

GUILT

BE

WITHHELD.

DONE AND ORDERED in open court on September

30, 2016 in Indian River County, Florida this 10/11/16.

NUNC PRO TUNC September 30, 2016

CIRCUIT JUDGE CYNTHIA L. COX

A-17

IN THE CIRCUIT COURT OF THE NINETEENTH

JUDICIAL CIRCUIT

IN AND FOR INDIAN RIVER COUNTY, STATE OF

FLORIDA

Defendant:

JOHN

S

CAMMALLERI

Case:

312014CF000067AXXXXX

SENTENCE

(As to Count 1)

The Defendant, being personally before this court,

accompanied by the defendant’s attorney of record,

BOBBY GUTTRIDGE, and having been adjudicated

guilty herein, and the court having given Defendant an

opportunity to be heard and to offer matters in

mitigation of sentence, and to show cause why the

Defendant should not be sentenced as provided by law,

and no cause being shown.

(check one if applicable)

A-18

and the Court having one

deferred

imposition of sentence until _____.

____

and the Court having previously entered a

judgment in this case on _____ now resentences

the Defendant.

____

and the Court having placed the Defendant on

__ probation/__ community control and having

subsequently revoked the Defendant’s __

probation/__ community control.

It Is the Sentence of the Court That:

_____ The defendant pay a fine of $_____, pursuant to

section 775.083, F.S., plus $_____ as the 5%

surcharge required by section 960.25, Florida

Statutes.

X

The Defendant is hereby committed to the

custody of the Department of Corrections.

_____ The Defendant is hereby committed to the

A-19

custody of the Sheriff of Indian River County,

Florida.

_____ The Defendant is sentenced as a youthful

offender in accordance with section 958.04,

Florida Statutes.

_____ The Defendant is hereby sentenced

__ Probation

__ Drug Offender Probation

__ Community Control

__ Sex Offender Probation

To Be Imprisoned (Check one, unmarked

sections are inapplicable):

X

For a term of natural life.

For a term of ___ Year(s) ____ Month(s) ___

Day(s) as a condition set forth in this order.

If “Split” sentence, complete the appropriate

paragraph.

A-20

____

Followed by a period of ___ Year(s) ___ Month(s)

___ Day(s) on __ probation/__ community control

under the supervision of the Department of

Corrections

according

to

the

terms

and

conditions of supervision set forth in a separate

order.

____

However,

after

serving

a

period

of

__

imprisonment in ___ the balance of the sentence

shall be suspended and the Defendant shall be

placed on __ probation/__ community control for

a period of ___ under the supervision of the

Department of Corrections according to the

terms and conditions of probation/ community

control set forth in a separate order.

In the event the Defendant is ordered to serve

additional split sentences, all incarceration portions

shall be satisfied before the Defendant begins service

A-21

of the supervision terms.

SPECIAL PROVISIONS

(As to Count 1)

Jail Credit

X

It is further ordered that the

defendant shall be allowed a total

of 990 days as credit for time

incarcerated before imposition of

this sentence X All Cts./Or Ct. ___

Others Provisions

In the event the above sentence is to the Department

of Corrections, the Sheriff of Indian River County,

Florida, is hereby ordered and directed to deliver the

defendant to the Department of Corrections at the

facility designated by the department together with a

copy of this judgment and sentence and any other

document specified by Florida Statute.

The defendant in open court was advised of the right to

A-22

appeal from this sentence by filing notice of appeal

within 30 days from this date with the clerk of this

court and the defendant’s rights to assistance of

counsel in taking the appeal at the expense of the

State on showing of indigency.

In imposing the above sentence, the court further

recommends DEFENDANT IS DESIGNATED AS

S E X U A L

P R E D A T O R

A L L

FEES/COSTS/RESTITUTION IN THE AMOUNT OF

$9,076.76 TO [REDACTED]/$49,500 IRCJ & $200,500

DOC COSTS OF INCARCERATION IS REDUCED TO

A CIVIL LIEN.

DONE AND ORDERED in open court on Sept 30, 2016

at Indian River County, Florida this 10/11/16.

NUNC PRO TUNC September 30, 2016

HONORABLE CYNTHIA L. COX

A-23

IN THE CIRCUIT COURT OF THE NINETEENTH

JUDICIAL CIRCUIT

IN AND FOR INDIAN RIVER COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

CASE NO: 312014CF000067A

ASSIGNED TO JUDGE PEGG

vs.

JOHN S. CAMMALLERI,

Defendant.

DEFENDANT’S MOTION TO SUPPRESS A

CONFESSION

OR ADMISSION ILLEGALLY OBTAINED

Pursuant to Fla. R. Crim. P. 3.190(i), article I,

sections 9 and 12 of the Florida Constitution, and the

fifth and fourteenth amendments to the United States

Constitution, Mr. Cammalleri, through undersigned

A-24

counsel, requests that this Court grant this motion

and in support thereof states the following:

1. Mr. Cammalleri is charged by information

with three counts of sexual battery on a child under 12

by a person over 18.

2. Mr. Cammalleri is requesting that the

following evidence be suppressed:

a. All statements allegedly made by Mr.

Cammalleri on January 14, 2014, when Detective

Partee and Detective Garrison went to the home of Mr.

Cammalleri at 4117 Worlington Terrace in Fort Pierce,

FL.

b.

All

statements

made

to

[redacted]

(Defendant’s daughter) during a digitally recorded

controlled phone call on January 14, 2014.

FACTS OF THE CASE

I.

December 27, 2013 Initial Interview

A-25

at Defendant’s Residence

On December 27, 2013, Detective Partee of the

Indian River County Sheriffs Office began an

investigation into allegations that the Defendant, John

Cammalleri had improper sexual contact with his

granddaughter.

Detective

Partee

was

assisted

throughout the investigation by Detective Garrison

also from the Indian River County Sheriff’s Office

As part of the investigation on December 27,

2013 Detective Partee set up the first of two controlled

phone calls between Mr. Cammalleri and [redacted]

who is the daughter of Mr. Cammalleri and the alleged

victim’s mother. Detective Partee also went to the Ft.

Pierce residence of Mr. Cammalleri and conducted a

face to face interview.

During both the controlled

phone call as well as the face to face interview John

Cammalleri denied ever touching his granddaughter in

A-26

an inappropriate or illegal manner.

After the interview at the Cammalleri residence

Detective Partee and Detective Garrison requested

that Mr. Cammalleri come down to the Indian River

County Sheriff’s Office and partake in a Computerized

Voice Stress Analysis (hereinafter, “CVSA”). Mr.

Cammalleri agreed. A CVSA was completed by

Detective Garrison. During the CVSA, Mr. Cammalleri

once again denied inappropriately touching the alleged

victim. It should be noted that the CVSA did not

indicate any deception in Mr. Cammalleri’s denials.

During the interview at Mr. Cammalleri’s

residence Detective Partee on numerous occasions

stated, that in order for the child and the family to heal

he could not call her a liar and had to apologize.

Detective Partee made this statement despite Mr.

Cammalleri denying be had done anything wrong.

A-27

Detective Garrison stated, toward the end of the initial

interview at the residence, that the only purpose for

them being there was to get help for the family and the

alleged victim. Specifically:

DETECTIVE GARRISON:

“The family needs you to help her

recover. I mean, they are going to feel

awkward bringing her over here, They,

are not getting us involved – they want

the healing process, they want the

counseling. That is what we are reaching

out for. I mean that is what we are trying

to do. This is a traumatic event for

everyone. So the quicker that we get past

it to get into the healing process, is the

best for everyone.”

Despite these initial pleas to get the child and

A-28

her family help and the implication that if he “told the

truth” he might just get counseling, Mr. Cammalleri

maintained his denials. At the end of the interview he

agreed to accompany the Detective to Indian River

County to be questioned using a CVSA.

II.

December 27, 2013 Interview and

Voice Stress Analysis at the Indian River County

Sheriff’s Office.

The Defendant followed the Detectives to the

Indian River County Sheriff's Office and was subjected

to another lengthy interview, the CVSA, and another

interrogation following the CVSA.

During the CVSA two pertinent questions were

asked:

1)

Have you ever placed your fingers inside

MK. (the alleged victim)

2)

Other than the two bathroom incidents

A-29

and the incident in your bedroom, has

M.K. ever seen your penis.*

*The incidents in question #2 related to accidental

benign behavior.

The Defendant answered no to both of those

questions and the test showed no signs ·that he was

being deceptive.

After the test Detective Partee and Detective

Garrison

became

more

aggressive

in

their

interrogation. Detective Garrison began telling the

Defendant that if he insisted on saying MK was lying

and persisting in his denials that it was going to be

extremely difficult on her and that they were going to

have to pump her full of psychiatric medication:

Detective Partee, in attempt to coerce an

admission, lied to the Defendant regarding the results

of the test. Notwithstanding the test showing no

A-30

indications of deceit, Detective Partee told the

Defendant, “I wanna make sure that you and I are on

the same page on all of this, Cause the results of the

test aren’t – aren’t looking to good.”

Detective Partee later in the interview infuses

religion to attempt to coerce a statement from the

Defendant that is consistent with the allegations

previously made by the alleged victim, to wit:

DETECTIVE PARTEE: I’m sure you

would remember. I would remember if I

did anything like that.

CAMMALLERRI: Yeah.

DETECTIVE PARTEE: But like I told

you people forgive. Everybody is forgiven,

Jesus Forgives, but let me – I mean –

CAMMALLERI: But this is what they

believe now. I mean, –

A-31

DETECTIVE PARTEE: You can’t – you

can’t – you can’t be forgiven until you

repent.

CAMMALLERI: Yeah I don’t know what

to tell you. I really don’t. Again, I am not

going to say I touched her and I showed

myself to her when it didn’t happen.

DETECTIVE PARTEE: And I don’t want

to tell me that it didn’t happen.

Detective Partee ends the interview by implying

that the State attorney will be more lenient on him if

he make an admission, to wit:

CAMMALLERI: But if she is implying

something about sexual abuse I don’t

know what that is. I honestly do not.

Not anymore than I know what this is all

about.

A-32

DETECTIVE PARTEE:

Right. Well

yeah, I just – I just really hope there is

nothing else you haven’t told us

CAMMALLERI: There isn’t I mean, –

DETECTIVE PARTEE: Because this is –

this is literally the time. This is the last

opportunity

CAMMALLERI: I understand.

DETECTIVE PARTEE: Because I am

not you know

CAMMALLERI: and as much as I don’t

want to go through whatever type of stuff

you are talking about psychiatric and

psychological type stuff,

DETECTIVE PARTEE: Well this is the

time. After today I am going to document

everything and give it to the State

A-33

Attorney’s Office

CAMMALLERI: All right

DETECTIVE PARTEE: They are going

to have to make their decision – And

their decision is based on all – everything

that done – that’s been doing, everything

that has been said. So you know there is

always something to tell people when it

comes down to it that time they’re going

to see somebody who that’s remorseful

and makes everybody better and wants

forgiveness, or they’re going to see

somebody that is completely just, you

know the opposite a cold hearted criminal

that doesn’t care about anybody but

himself.

In summary the detectives collectively sought to

A-34

overcome the Defendant’s will and get him to make a

statement by expressly and implicitly stating that his

granddaughter would be punished for lying if he did

not agree to the allegation. They further infused

religion and implied leniency, and lied about the

results of the CVSA, all in order to get him to make an

inculpatory statement. Despite the detectives tactics

the Defendant continued to deny the allegations during

the December 27, 2013 interrogation at the Sheriffs

Office.

III.

January

14,

2014

Interview At

Defendant’s Residence.

On Friday January 4, 2014, Detective Partee

submitted a warrant affidavit for John Carnmalleri.

ASA William Long denied the warrant for the following

reasons:

In evaluating the warrant affidavit, there

A-35

was

not

sufficient

information

to

establish probable cause that the crime

was

committed.

Specifically,

the

accusations against the defendant arise

from a young child, and there exists no

corroborating

physical

evidence,

or

statements, to confirm the victim’s

allegations. As such, the warrant cannot

be approved. If further investigation

yields

additional

information,

an

amended warrant would be reconsidered

at that time.

The alleged victim’s parents were informed of

the denial of an arrest warrant. On January 7, 2014,

the alleged victims parents made a videotape of their

daughter making additional allegation of sexual abuse.

A copy was shown to Detective Partee. Another copy

A-36

was given to the Defendant’s wife who in turn showed

the video to the Defendant.

On January 14, 2014, Detective Garrison and

Detective Partee again went to the Defendant’s

residence in Fort Pierce, Fl for the purpose of trying to

obtain an admission to present to the State Attorney’s

Office for approval of an amended warrant. Upon

arrival, they made contact with the Defendant and

asked if he wouldn’t mind speaking with them. He

replied “sure”. The Defendant went outside of his

residence to speak with the detectives.

At the outset the detectives confirmed that the

Defendant had seen the videotaped allegations made

by the alleged victim.

The detectives then engaged in a lengthy

discussion with the Defendant repeatedly implying

leniency or outright lack of prosecution if he “told the

A-37

truth” to his family specifically his daughter. They

further told the Defendant that the family didn’t want

to prosecute him but only wanted the truth and that

their involvement was only to facilitate that,

specifically Detective Garrison states:.

“nobody at this point, I mean even

removing us, nobody wants to see him go

to jail and including his own family. The

issue is without him coming forward and

admitting what he has done, we’re gonna

keep fighting our case over here because

that is what the family wants because he

is not admitting anything”

Detective Garrison and Partee engage the

Defendant further in an attempt to coerce an

admission from him by stating that the family is in

charge of the prosecution. They go on to expressly and

A-38

implicitly tell the Defendant that if he confesses to

them he will likely not be prosecuted. The Following

are excerpts from the interrogation:

DETECTIVE GARRISON: they’re the

victims in this, it is their choice .... And

right now talking to them, they never

wanted anything to happen to you.

But we but we take that away when we

start doing our physical stuff that is what

we are saying. So if you wanna ...

MR. CAMMALLERI so if we can work –

we can – what I am saying is, we can

clear this up and work it out?

DETECTIVE GARRISON Yeah if you

talk to them

DETECTIVE PARTEE if your honest

with your family then

A-39

MR. CAMMILLERI: and then your okay?

DETECTIVE PARTEE: Well yes I mean

but it depends

MR. CAMMALLERI: on what they say

DETECTICE GARRISON: they – they

keep pushing forward because there is no

remorse . . . They don’t see any ending so

they are still using us.

Where if you

came clean and said this and allowed. to

heal together, we probably we probably

wouldn’t even be here we’d be removed.

DETECTIVE GARRISON: That is what

she needs to see. If you want us to go

away, she needs to be able to see that and

know, he is human you know and he

messed up but he is my dad. I love him no

matter what. She will tell you that. She

A-40

told me that.

DETECTIVE PARTEE: we all screw up.

MR. CAMMALLERI: I hear you guys

DETECTIVE GARRISON:

Everything

can be fixed it is not the end of the world.

DETECTIVE PARTEE: The court shows

mercy to people that are honest and men

about things

DETECTIVE GARRISON: If it even goes

to court.

DETECTIVE PARTEE:

if it gets that

far. He is exactly right

DETECTIVE GARRISON: a lot of this

stuff doesn’t even go there. The family

creates this healing process. They do it

here. They don’t want that getting out.

They don’t want your name in the paper.

A-41

They don’t want any of that stuff that is

not what they want.

MR. CAMMALLERI:

and she can fix

that

DETECTIVE GARRISON: Fix what?

MR. CAMMALERRI: I mean, make that

happen?

DETECTIVE GARRISON:

Yeah, she

tells us we are not involved. Yeah that’s

all.

Shortly after the interview at the Defendant’s

home on the same day, the detectives in concert with

Mr. Cammalleri’s daughter set up a controlled phone

call for the purpose of eliciting an inculpatory

statement. The call was made at the direction of the

detectives. Mr. Cammalleri’s daughter was briefed by

law enforcement prior to the call. The detectives were

A-42

present, recording, and directing the call when it was

made.

During the call Mr. Cammalleri made

admissions that were consistent with the allegations

that had been previously shown to him.

MEMORANDUM OF LAW

I.

BURDEN OF PROOF

In Jorgenson v. State, 714 So. 2d 423, 426 (Fla.

1998), the Florida Supreme Court stated that “the

burden of showing that a defendant’s statement was

voluntarily made is on the State. Brewer v. State, 386

So. 2d 232, 236 (Fla.1980). The State must establish

voluntariness by a preponderance of the evidence. Id .”

See also Thompson v. State, 548 So. 2d 198, 204 (Fla.

1989) (“the burden is on the state to show by a

preponderance of the evidence that [a] confession was

freely and voluntarily given and that the rights of the

accused were knowingly and intelligently waived”).

A-43

II.

LAW

To be admissible into evidence at trial, the State must

show that a confession was voluntarily given. See

DeConingh v. State, 433 So. 2d 501, 503 (Fla. 1983).

Where the defendant in the trial court challenges the

voluntariness of the confession, the burden is on the

State to establish by a preponderance of the evidence

that it was freely and voluntarily given. See Escobar

v. State, 699 So. 2d 988, 994 (Fla. 1997); DeConingh,

433 So. 2d at 502.

The ultimate issue of the

voluntariness of a confession is a legal question

requiring independent review. See Miller v. Fenton,

474 U.S. 104, 112, 88 L. Ed. 2d 405, 106 S. Ct. 44.

For a confession or inculpatory statement to be

voluntary,

surrounding

the

the

totality

of

the

circumstances

statement

must

indicate

the

statement was the result of a free and rational choice.

A-44

The mind of the accused should, at the time, be free to

act, uninfluenced by fear or hope.

To exclude a

confession or an inculpatory statement, it is not

necessary that any direct promises or threats be made

to the accused. It is sufficient if the circumstances or

declarations of those present are calculated to delude

the prisoner as to his true position and exert an

improper influence over his mind. A confession or

inculpatory statement is not freely and voluntarily

given if it has been elicited by direct or implied

promises, however slight. Walker v. State, 771 So. 2d

573 (Fla. 1st DCA 2000); See also Arizona v.

Fulminante, 499 U.S. 279, 288 (1991) (confession

involuntary where “it was fear of physical violence,

absent protection from his friend (and Government

agent) Sarivola, which motivated Fulminante to

confess”); E. C. v. State, 841 So. 2d 604, 606 (Fla. 4th

A-45

DCA 2003) (investigating officer’s promise of leniency

rendered suspect’s statements involuntary); Edwards

v. State, 793 So. 2d 1044, 1048 (Fla. 4th DCA 2001)

(confession

given

involuntarily

where

officer

threatened to charge suspect with added and more

serious charges); Walker v. State, 771 So. 2d 573, 576

(Fla.

1st

DCA

2000)

(defendant’s

inculpatory

statements were involuntary where they were the

result of a quid pro quo bargain, influenced by the hope

of not being arrested); Collins v. Wainwright, 311 So.

2d 787, 789 (Fla. 4th DCA 1975) (“a confession can

never be received in evidence where the prisoner has

been influenced by any threat or promise; for the law

cannot measure the force of the influence used, or

decide upon its effect upon the mind of the prisoner”)

(italics added); Light v. State, 20 So. 3d 939 (Fla. Dist.

Ct. App. 1st Dist. 2009) (confession involuntary where

A-46

police misrepresented law and made promises that

defendant could go home if he confessed); Telfort v.

State, 978 So. 2d 225 (Fla. Dist. Ct. App. 4th Dist.

2008)(officer offer to not charge the defendant with an

additional charge of possession was – at the very least

– implied. Court held implied promise of leniency was

sufficient to render a confession involuntary.) Albritton

v. State, 769 So. 2d 438 (Fla. Dist. Ct. App. 2d Dist.

2000)( confession in murder ruled inadmissible because

of

implied

promise

not

to

prosecute

and

misrepresentation that Defendant did not commit a

crime if crime based on religious belief).

Furthermore, an officer’s suggestion that they

have

the

power

to

effect

leniency,

or

a

misrepresentation or lack of explanation regarding the

limits of police authority to not prosecute or give

leniency will render a confession involuntary. Day v.

A-47

State, 29 So. 3d 1178 (Fla. Dist. Ct. App. 4th Dist.

2010). See also Brewer v. State, 386 So. 2d 232, 235

(Fla. 1980) (finding a confession involuntary where the

officers “raised the spectre of the electric chair,

suggested that they had the power to effect leniency

and suggested to the appellant that he would not be

given a fair trial.”); and Ramirez v. State, 15 So. 3d 852

(Fla. Dist. Ct. App. 1st Dist. (2009) (The court held

that the detectives constant offers of unspecified help

were improper and rendered the confession involuntary

and inadmissible. The court noted that the detective’s

failure to explain the limits of his authority was one

major factor influencing their decision).

Additionally,

when

“the

police

inject

Christianity or any other religion into an interrogation,

the potential for coercion is enhanced.” Nelson v. State,

850 So. 2d 514 (Fla. 2003).

A-48

III.

APPLICATION OF THE LAW AND

CONCLUSIONS

In this case the law enforcement engaged in a

systematic approach over multiple interviews to

overcome the defendant’s free will. The implicit

promises of leniency or lack of prosecution began in the

first meeting on December 27, 2013. At that time they

indicated that their focus was only to get the alleged

victim help and implied that if he “just told the truth”

he could get the whole family to heal.

Later in the day after the defendant had

maintain his denials of any wrong doing and had

agreed to and taken a voice stress test analysis the

Detectives in the case became more aggressive in their

questioning. The Detectives lied about the results of

the CVSA, telling the defendant that, despite him

showing no deception in his denials, that the results

A-49

“did not look good”. They threatened harm in the form

of intrusive psychological testing and “pumping her full

of drugs” against the alleged child victim (who is also

the Defendant’s granddaughter) if he did not change

his story, infused religion, and finally made implied

promises of leniency with the State Attorney if he

changed his story and confessed.

After being denied a warrant in the case and

being pushed by the alleged victim’s parents to file

charges, the detectives made another attempt to obtain

a confession on January 14, 2014. They went to the

Defendant’s residence in Ft Pierce Fl to meet with him,

this time they much more aggressively played on their

previous implication of leniency and the potential for

no prosecution. At one point explicitly telling him that

if he clears this up with them (the family) that his

daughter can fix it, that the case might never make it

A-50

to court, and that if he tells the entire truth to his

daughter.

Additionally

the

detective

told

the

Defendant that, “if you come clean and said this – and

allowed to heal together, we probably – we probably

wouldn’t even be here – we’d be removed.” All of this

was done in violation of the prohibition against

obtaining a confession through promises of leniency or

lack of prosecution. Walker v. State, 771 So. 2d 573

(Fla. 1st DCA 2000).

They

further compound the

coercion by

specifically telling the Defendant that the Defendant’s

daughter, does not want him prosecuted and only

wants him to tell the truth, and that they won’t be

involved if she tells them not to. This is clearly a

promise beyond the officers authority and is an

impermissible tactic to get the Defendant to make

inculpatory statements. See Day v. State, 29 So. 3d

A-51

1178, 1181 (Fla. 4th DCA 2010); Ramirez v. State, 15

So. 3d 852 (Fla. Dist. Ct. App. 1st Dist. 2009); (where

an officer offers to “help” or “fix things” without

clarification on the limits of the officer’s authority, a

defendant’s resulting confession is involuntary).

The impermissibly coercive interview techniques

utilized by law enforcement overcame the Defendant’s

free will on January 14, 2014. This action caused the

Defendant to make coerced inculpatory statements to

the Detectives and, a short while later to make coerced

inculpatory statements to his daughter during a

controlled phone that was initiated, recorded, and

directed

by

the

investigating

detectives.

The

statements made by the Defendant were a mere

recitation of the allegation presented to him earlier in

the day. They are the product of improper coercion,

using tactics that are in violation of his due process

A-52

rights as guaranteed by the fifth and fourteenth

amendments to the United States Constitution and as

such are unreliable and impermissible as evidence in

court.

WHEREFORE,

the

Defendant,

John

Cammalleri, by and through the undersigned attorney,

requests that this Court grant the Defendant’s Motion

to Suppress a Confession or Admission Illegally

Obtained.

I HEREBY CERTIFY that a true copy of the

foregoing has

Assistant

State

been

furnished

Attorney,

bye-service to

William

C.

Long,

Sa19eservice@sao19.org on May 11, 2015.

[signature of Bobby D. Guttridge]

BOBBY D. GUTTRIDGE

Attorney for Defendant

Florida Bar No. 0052760

A-53

1601 20th Street

Vero Beach, FL 32960

Tel: (772)978-0240

Fax: (772)778-4947

Pleadings@Guttridgelaw.com

A-54

Excerpt of Transcript of December 27, 2013, Law

Enforcement Interview of John Cammalleri at his

residence, page 37

DETECTIVE GARRISON: The family needs

you to help her recover. I mean, they’re gonna feel

awkward bringing her over here. They’re not getting

us involved – they want the healing process, they want

the counseling. That’s what we’re reaching out for. I

mean, that’s what we’re trying to do.

This is a

traumatic event for everyone. So the quicker we can

get past it to get into the healing process, is the best

for everyone.

DETECTIVE PARTEE: It’s all right.

JOHN CAMMALLERI: Oh no, it’s not all right.

A-55

Excerpt of Transcript of December 27, 2013, Law

Enforcement Interview/Lie Detector Test of John

Cammalleri at Sheriff’s Office, page 37

DETECTIVE GARRISON: Okay, same thing.

Is your name John Cammalleri?

JOHN CAMMALLERI: Yes.

DETECTIVE GARRISON: Is the color of the

ceiling white?

JOHN CAMMALLERI: No.

DETECTIVE GARRISON: Are the lights on in

this room?

JOHN CAMMALLERI: Yes.

DETECTIVE GARRISON:

Have you ever

placed any of your fingers inside of M.K.?

JOHN CAMMALLERI: No.

DETECTIVE GARRISON: Is the door to this

A-56

room closed?

JOHN CAMMALLERI: Yes.

DETECTIVE GARRISON: Other than the two

bathroom incidents and the one incident in your

bedroom, has M.K. ever seen your penis?

JOHN CAMMALLERI: No.

A-57

Excerpt of Transcript of December 27, 2013, Law

Enforcement Interview/Lie Detector Test of John

Cammalleri at Sheriff’s Office, pages 46-47

DETECTIVE PARTEE: I wanna make sure that

you and I are on the same page on all this. ‘Cause the

results of the test aren’t – aren’t looking to good. And

I know like I said before, I know you care a lot about

your daughter – your granddaughter and your

daughter and everybody in your family.

That’s

obvious, otherwise you wouldn’t have come down here

and put yourself through all this stuff. But it really

has come to the point again where it’s just – it’s on –

it’s coming upon you as the you know, the head of the

family, you’re the dad, the old old man, that you have

to – you have to step up and make sure that they’re

gonna be safe and healthy mentally, physically, every

A-58

which way you can think of. Your granddaughter is

not gonna be mentally healthy for a while. Something

happened to her. I wholeheartedly believe that. That’s

really not even a question. It happened. ‘Cause a six

year old doesn’t learn this stuff. She’s in kindergarten.

They’re not teaching sex ed in school, atleast not here

yet at that age. She’s not seeing it on TV ‘cause her

parents are pretty – you know, – you know, they’re

very strict on what their kids watch. There’s only one

– only one way for that to get in her mind. And, you

know, it’s also became – it’s also become aware – I’ve

become aware of the fact that there may have been

abuse in your daughter’s life.

JOHN CAMMALLERI: Not from me.

That’s –

DETECTIVE PARTEE: So, I mean, that’s –

that – today your – your daughter really broke down

A-59

with all this stuff. She’s been – she was –

JOHN CAMMALLERI: I can imagine.

DETECTIVE PARTEE: – at her wits end with

everything. So, you know, it’s – that’s why I’m telling

you it’s so important ‘cause if something did happen, or

it didn’t happen, she’s not – she is, herself, having

issues with – with having to deal with what did or

didn’t happen to her as a kid.

JOHN CAMMALLERI: Nothing happened to

either one of them at my hands.

DETECTIVE PARTEE: Now I think – I think I

heard Detective Garrison talk about how your

daughter – your granddaughter may end up – you

know, if she’s (indiscernible) – if she ends up – if they

end up turning or thinking that she’s hallucinating

this stuff, or just making this stuff up, they’re gonna

put her on meds that she doesn’t need to be on.

A-60

Excerpt of Transcript of December 27, 2013, Law

Enforcement Interview/Lie Detector Test of John

Cammalleri at Sheriff’s Office, page 61

DETECTIVE PARTEE: I’m sure you would. I

would remember if I did anything like that.

JOHN CAMMALLERI: Yeah.

DETECTIVE PARTEE: But like I told you,

people forgive. Everybody is forgiven, Jesus forgives,

but let me – I mean, –

JOHN CAMMALLERI: But this is what they

believe now. I mean, –

DETECTIVE PARTEE: You can’t – you can’t –

you can’t be forgiven until you repent.

JOHN CAMMALLERI: Yeah.

I don’t know what to tell you. I really don’t.

Again, I’m not gonna say I touched her and I showed

A-61

myself to her when it didn’t happen.

DETECTIVE PARTEE: And I don’t want you to

tell me that it didn’t happen.

A-62

Excerpt of Transcript of December 27, 2013, Law

Enforcement Interview/Lie Detector Test of John

Cammalleri at Sheriff’s Office, pages 66-67

JOHN CAMMALLERI: But if she’s implying

something about sexual abuse, I don’t know what that

is. I honestly do not. Not any more than I know what

this is all about.

DETECTIVE PARTEE: Right.

Well, yeah, I just – I just really hope there’s

nothing else that you haven’t told us.

JOHN CAMMALLERI: There isn’t. I mean,

DETECTIVE PARTEE: Because this is – this is

this is literally the time. This is the last opportunity.

JOHN CAMMALLERI: I understand you.

DETECTIVE PARTEE: Because I’m not – you

know, –

A-63

JOHN CAMMALLERI: And as much as I don’t

want her to go through whatever kind of stuff you’re

talking about, psychiatric and psychological type stuff,

–

DETECTIVE PARTEE: Well this is – this is the

time. After today I’m gonna document everything and

I’m gonna give it to the State Attorney’s Office –

JOHN CAMMALLERI: All right.

DETECTIVE PARTEE: – and they’re gonna

have to make their decision.

JOHN CAMMALLERI: Yeah. Yeah.

DETECTIVE PARTEE: And their decision is

based on all – everything that’s done – that’s been

done, everything that’s been said. So, you know, there

is always something to tell people when it comes down

to that time they’re gonna see somebody that’s

remorseful and wants to make everybody better, wants

A-64

forgiveness, or they’re gonna see somebody that is

completely just, you know, the opposite, a cold-hearted

criminal that doesn’t care about anybody but himself.

A-65

Excerpt of Transcript of January 14, 2014, Law

Enforcement Interview of John Cammalleri at his

residence, page 4

DETECTIVE PARTEE: Were you made – did

they talk to you at all about the latest – the newest

stuff, the newest allegations from M.?

JOHN CAMMALLERI: (Indiscernible).

DETECTIVE PARTEE: They recorded her on a

video or something.

JOHN CAMMALLERI: Okay, yeah. My wife –

I think they sent it to my wife. And then – then –

DETECTIVE PARTEE: Did you happen to see

it?

JOHN CAMMALLERI: I did see it real quickly,

yeah. (Indiscernible).

DETECTIVE PARTEE: I mean, were you able

A-66

to hear what she said?

JOHN CAMMALLERI: Yeah, I heard. Yeah,

yeah.

Yeah.

DETECTIVE PARTEE: Okay.

A-67

Excerpt of Transcript of January 14, 2014, Law

Enforcement Interview of John Cammalleri at his

residence, pages 12-13

DETECTIVE GARRISON: And nobody – at this

point, I mean, even removing us, nobody wants to see

him go to jail, and including his own family. The issue

is without him coming forward and admitting what

he’s done, we’re gonna keep fighting our case over here

because that’s – the family wants that ‘cause he’s not

admitting anything.

A-68

Excerpt of Transcript of January 14, 2014, Law

Enforcement Interview of John Cammalleri at his

residence, pages 15-17

JOHN CAMMALLERI: And what happens then

with you guys?

DETECTIVE PARTEE: If you’re honest with

your family? They have to tell me that stuff, unless

you are. Are you gonna tell me that?

JOHN CAMMALLERI:

Well let me talk to

them first.

DETECTIVE PARTEE: Okay.

JOHN CAMMALLERI: Let me talk to them

first.

DETECTIVE GARRISON: They’re the victim’s

in this. It’s their choice.

JOHN CAMMALLERI: That’s my concern is I

A-69

wanna talk to them.

DETECTIVE GARRISON: And right now,

talking to them, they’ve never wanted anything to

happen to you. But we take that away from them

when we start doing our physical stuff. That’s what

we’re saying. So if you wanna –

JOHN CAMMALLERI: So if we can work – we

can –

DETECTIVE GARRISON: Yeah.

JOHN CAMMALLERI: What I’m saying is, we

can clear this up and work it out?

DETECTIVE GARRISON: Yeah. If you talk to

them –

JOHN CAMMALLERI: Well, I mean –

DETECTIVE GARRISON: Yeah. Yeah.

JOHN CAMMALLERI: – (indiscernible) saying.

DETECTIVE PARTEE: If you’re honest with

A-70

your family then –

JOHN CAMMALLERI: And then you’re okay?

DETECTIVE PARTEE: Well, yeah. I mean, but

it depends – it depends on –

JOHN CAMMALLERI: On what they say.

DETECTIVE PARTEE: Yeah.

But you need to be honest with your family

whether or not I get – ever get told or not. You need to

be honest with them.

JOHN CAMMALLERI: I hear you.

DETECTIVE PARTEE: Okay?

DETECTIVE GARRISON:

Yeah, they keep

pushing forward now because there’s no remorse.

There’s no –

DETECTIVE PARTEE:

Are you all right,

Evelyn?

EVELYN CAMMALLERI: (Indiscernible).

A-71

DETECTIVE PARTEE: Like, physically, are

you okay?

EVELYN CAMMALLERI: (Indiscernible). I’m

okay.

DETECTIVE GARRISON: They don’t see any

ending so they’re still using us.

JOHN CAMMALLERI: Yeah.

DETECTIVE GARRISON: Where if you came

clean and said this and allowed to heal together, we

probably wouldn’t even be here. We’d be removed

(indiscernible).

A-72

Excerpt of Transcript of January 14, 2014, Law

Enforcement Interview of John Cammalleri at his

residence, pages 20-23

DETECTIVE GARRISON: That’s what she

needs to see. If you want us to go away, she needs to

be able to see that and know, he’s human, you know,

and he messed up but he is my dad. I love him no

matter what. She’ll tell you that. She told me that.

DETECTIVE PARTEE:

Nobody wants –

nobody wants to think that you’re a monster. I told

you how I feel. Your family does not need to think

that.

JOHN CAMMALLERI: I understand. And if

you believe that, hearing what you’re heard, I don’t

blame you. And I feel like an idiot.

DETECTIVE PARTEE: Well listen, your family

A-73

does not need to think that. That’s why you need to be

honest with them so they know that there’s a human

in there.

JOHN CAMMALLERI: There is.

DETECTIVE PARTEE: Okay, there’s a human

in there so let him out. Right, wrong, or indifferent, we

all screw up, John.

JOHN CAMMALLERI: (Indiscernible).

DETECTIVE PARTEE: We all screw up.

JOHN CAMMALLERI: I hear you guys.

DETECTIVE GARRISON: Everything can be

fixed. It’s not the end of the world.

JOHN CAMMALLERI:

I want it to. I love

them so much.

DETECTIVE PARTEE: I know you do. They

love you. They love – you guys are stuck in this crazy

conundrum.

A-74

JOHN CAMMALLERI: I’m scared as hell right

now.

DETECTIVE PARTEE: Of – what are you

scared of, John?

JOHN CAMMALLERI: I’m scared of the

consequences.

DETECTIVE PARTEE: Of going to jail?

JOHN CAMMALLERI: Yeah.

DETECTIVE PARTEE: Okay, well, you know

what, as a man when you’re dealt – when you have to

deal with a really tough situation are you gonna run –

let’s – okay, let’s say it like this, you and Evelyn – you

– let’s say you and [redacted], the love of your life

maybe. I’m assuming ‘cause she’s your daughter. You

and [redacted] are out at a movie. You’re coming out

of the movie, you’re going to the car, somebody steps up

with a gun and says –

A-75

JOHN CAMMALLERI: Oh, I’ll step in front of

her.

DETECTIVE PARTEE: You’ll step in front –

well that’s what you need to do.

JOHN CAMMALLERI: Right.

DETECTIVE PARTEE: ‘Cause right now you’re

tucking tail and you’re running the other way. And

you’re leaving – and you’re leaving [redacted] with this

guy with a gun.

JOHN CAMMALLERI: (Indiscernible).

DETECTIVE GARRISON: It’s just devastating

for them to see that. And again, I don’t know how

many times this happened. Only what she said. But

if you gotta like I said, it’s gonna suck either way. But

if it’ll happened one time and – even if it happened

fifty times, as long as you, look, fine it was once, daddy

will get help. You don’t have to go into detail that it

A-76

happened ten times, whatever it is. Look, I screwed

up. And that’s I think when (indiscernible) the weight

will come off. (Indiscernible). I mean, like I said, they

wanna know you’re human. That’s all they want at

this point.

DETECTIVE PARTEE: And if you’re scared

about the judicial side of things,

JOHN CAMMALLERI: Of course I am.

DETECTIVE PARTEE: Okay, well I’m saying,

if you are, okay, the court shows mercy to people that

are honest and men about these things.

DETECTIVE GARRISON: If it even goes to

court.

DETECTIVE PARTEE: If it gets that far. He’s

exactly right.

DETECTIVE GARRISON: A lot of this stuff

doesn’t even go there. The family creates the healing

A-77

process. They do it here. They don’t want that getting

out. They don’t want your name in the paper. They

don’t want any of that stuff. That’s not what they

want.

JOHN CAMMALLERI: And she can – and she

can fix that?

DETECTIVE GARRISON: Fix what?

JOHN CAMMALLERI:

I mean, make that

happen?

DETECTIVE GARRISON: Yeah, she just tells

us we’re not involved. Yeah, that’s all.

A-78

Excerpt of Transcript of January 14, 2014, Law

Enforcement Interview of John Cammalleri at his

residence, pages 26

DETECTIVE PARTEE: That’s where you gotta

get the help.

DETECTIVE GARRISON: Don’t believe that

you can do this on your own because five years from

now it’s gonna happen again, or a neighborhood kid

will happen, and then you’re not gonna have that

choice. Like I said, then all of the sudden another

family’s gonna come after you and they’re not gonna

have leniency. They’re not gonna back off. Your own

family has the power to do that. Another family won’t.

So if you can get in there, talk to somebody, get help

with it, then you can live with yourself a little better

too knowing that those temptations are not gonna be

A-79

there.

What about – are you into child porn at this

point? Have you been looking at that?

JOHN CAMMALLERI: No. Jesus, no. No, no,

no, no.

DETECTIVE GARRISON: I mean, you’re not

looking at it on the computer or anything?

JOHN CAMMALLERI:

I don’t know what to

tell you as far as what happened.

A-80

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT

IN AND FOR INDIAN RIVER COUNTY

FLORIDA

Case No. 312014CF000067A

Judge: Robert L. Pegg

STATE OF FLORIDA

Plaintiff

vs.

JOHN CAMMALLERI

Defendant.

ORDER DENYING DEFENDANT’S MOTION TO

SUPPRESS CONFESSION(S) OR

ADMISSION(S)

This cause having come on to be heard this 30th

day of June, 2015, upon the defendant’s Motion to

Suppress a Confession or Admission Illegally Obtained,

A-81

and the court having heard the evidence presented and

argument of counsel, and being otherwise duly advised

in the premises, the court find as follows:

1. The defendant is charged by information with

three counts of Sexual Battery on a Child Under

Twelve by a Person Over Eighteen.

2.

The defendant seeks to suppress certain

admission(s) and/or confession(s) made by the

defendant at an interview by law enforcement as his

home located at 4117 Worlington Terrace, Fort Pierce,

Florida, on January 14, 2014, and certain statements

made during a controlled telephone call between the

defendant and his daughter, [redacted] on the same

day.

3. The defendant was interviewed by Detectives

Ross Partee and Ron Garrison of the Indian River

County Sheriff’s Office on two separate occasions on

A-82

December 27, 2013. The first was at the defendant’s

residence and the second at the Sheriff’s Office.

4. The defendant was not under arrest or in

custody during any of the interviews with law

enforcement or during the controlled phone call.

5. The general facts giving rise to the Motion to

Suppress filed herein are as follows:

Detective Ross Partee (Partee) began an

investigation concerning allegations of sexual abuse by

the defendant with his granddaughter.

He was

assisted throughout the investigation by Detective Ron

Garrison (Garrison).

Partee and Garrison went to the defendant’s

home on December 27, 2013 and conducted a lengthy

interview

with

the

interview,

Partee

defendant.

and

Garrison

Following

that

requested

the

defendant voluntarily come to the Indian River

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Sheriff’s Office and take a Voice Stress Analyzer test.

The defendant appeared at the Sheriff’s Office, took the

test, and was subjected to another interview.

On January 14, 2014, Partee and Garrison

conducted another interview at the defendant’s home.

Following that interview, the defendant’s daughter,

[redacted] made a controlled telephone call to the

defendant. Certain admissions/confessions were made

during the January 14, 2014 interview and telephone

call.

APPLICATION OF LAW TO THE FACTS

The defendant maintains that during the two

interviews on December 27, 2013, the detectives began

to subtly coerce subsequent admissions from the

defendant using various interrogating techniques.

During his presentation, he made specific citations to

line and page numbers of these interviews that the

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thought were improper and coercive, as well as the

January 14, 2014 interview. He concedes that the

December 27th interviews by themselves, contain

nothing suppressible in either statement, but they

should be considered in a cumulative fashion for laying

the groundwork for the coercion by the detectives in

the January 14, 2014 interview and phone call.

Whether a confession is admissible depends on

(1) whether the interrogating officers engaged in

coercive activity, and (2) whether that activity was

sufficient to overcome the free will of the defendant.

See Blake v. State, 972 So. 2d 839, 844 (Fla. 2007). As

this Court long ago stated:

To render a confession voluntary and

admissible as evidence, the mind of the

accused should at the time be free to act,

uninfluenced by fear or hope. To exclude

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it as testimony, it is not necessary that

any direct promises or threats be made to

the accused. It is sufficient, if the

attending circumstances, or declarations

of those present, be calculated to delude

the prisoner as to his true position, and

exert an improper and undue influence

over his mind. Simon v. State, 5 Fla. 285,

296 (1853).

Baker v. State, 71 So. 3d 802 (Fla. 2011).

The defendant here attempts to point out

different implied promises that may have been made or

suggested to him. There was no offer of leniency or

promises that he would not be prosecuted.

The Florida Supreme Court (Baker v. State, 71

So.3d 802 (Fla. 2011)) has addressed the issue of

voluntariness of statements that can be construed as

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confessions:

The test to be applied is one of voluntariness, or

free will, which is to be determined by an examination

of the totality of the circumstances surrounding the

confession. Moreover, to establish that a statement is

involuntary, there must be a finding of coercive police

conduct. Absent police conduct causally related to

the confession, there is simply no basis for concluding

that any state actor has deprived a criminal defendant

of due process of law. Thus, whether the confession is

admissible depends on (1) whether the interrogating

officers engaged in coercive activity, and (2) whether

that activity was sufficient to overcome the free will of

the defendant. Davis v. State, 151 So. 3d 4, (4th DCA

2014).

A confession is inadmissible if it is involuntary.

See Brewer v. State, 386 So. 2d 232, 235 (Fla. 1980);

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Coffee v. State, 25 Fla. 501, 510, 6 So. 493 (1889). The

test to determine whether a confession is voluntary—in

other words, not coerced—is whether it was the

product of free will and rational choice. See Blake v.

State, 972 So. 2d 839, 844 (Fla. 2007) (noting that “the

salient consideration” is whether the defendant’s free

will was overcome). This is determined based on “an

examination of the totality of the circumstances

surrounding the confession.” Traylor, 596 So. 2d at

964; see also Blake, 972 So. 2d at 844; Brewer, 386 So.

2d

at

237.

In

assessing

the

totality

of the

circumstances, a court must consider any promises or

misrepresentations made by the interrogating officers.

See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420,

22 L. Ed.2d 684 (1969) (noting that misrepresentation

by law enforcement is a relevant consideration in the

totality-of-the-circumstances assessment). Martin v.

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State, 107 So. 3d 281, (Fla. 2012).

At no time during any police contact was the

defendant restrained, arrested, or held in custody. It is

clear he knew he was free to leave and could

discontinue his contact with law enforcement at any

time.

I find from the evidence, considering the totality

of the circumstances, that any statements, admissions,

or confessions made by the defendant during any of the

four interviews, two on December 27, 2013, one on

January 14, 2014, and the controlled phone call of

January 14, 2014, were in fact voluntary and not the

product of any police coercion or improper conduct. No

express or implied promises of any kind were made by

the detectives that would render the statement(s)

involuntary and therefore illegal.

It is therefore

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ORDERED

AND

ADJUDGED

that

the

defendant’s Motion to Suppress Confessions and / or

Admissions is hereby DENIED.

DONE AND ORDERED this 25th day of July,

2015, in Vero Beach, Indian River County, Florida.

[signature of The Honorable Robert L. Pegg]

ROBERT L. PEGG

Circuit Judge

cc:

Bobby Guttridge, Esq.

William Long, ASA

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