Opposition Brief — Johnathan I. Alcegaire, Petitioner v. Florida

Supreme Court briefMar 29, 2022

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CASE NO. 21-7224

IN THE SUPREME COURT OF THE UNITED STATES

JOHNATHON I. ALCEGAIRE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

TIMOTHY A. FREELAND

Senior Assistant Attorney General

Office of the Attorney General

Capital Litigation

PL-01, The Capitol

Tallahassee, Florida 32399

Telephone: 850-414-3300

capapp@myfloridalegal.com

carolyn.snurkowski@myfloridalegal.com

timothy.freeland@myfloridalegal.com

COUNSEL FOR RESPONDENT

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

[Capital Case]

Whether a violation of Giglio v. United States., 405 U.S. 150 (1972) is

shown where there is no dispute regarding the accuracy of the evidence

and opposing counsel merely disagrees with the prosecutor's closing

argument?

Alcegaire, who lived in Miami, was linked by eyewitness and other evidence

to an apparently drug-related triple homicide that occurred in east Lakeland,

Florida. Alcegaire was found guilty and sentenced to death. An eyewitness, the sole

survivor of the attack, testified that Alcegaire was at the murder scene and actively

involved in the events there. Alcegaire did not testify, but counsel established

through cross examination of Detective McPherson that several days before the

murders, Alcegaire used his cell phone to look for an address in west Lakeland that

was several miles from the murder site. Despite the complete absence of evidence

supporting it, defense counsel argued to the jury that Alcegaire was at the west

Lakeland address when the three victims were killed.

On rebuttal, the prosecutor showed the jury an enlarged street map of

Lakeland and, over defense objection, used it as a demonstrative aid to challenge

Alcegaire's claimed alibi. The Florida Supreme Court rejected Petitioner's claim

that argument based on the map was deliberately false or misleading. These facts

lead to the aforementioned question.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .... 1... 2... cee eee eee i

TABLE OF CONTENTS .... 2.0... 2c eee eee ee ene eee ii

TABLE OF CITATIONS .. 0... ec ee eee eee eee eee eee iii

CITATION TO OPINION BELOW.......... 0... cece ccc eee eee eens 1

JURISDICTION 2... . ccc eee ccc eee ce ee ee ee eee eee eee eees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........... 1

STATEMENT OF CASE .......... 0c cece ccc ee eee eee ee eee e eee 1

REASONS FOR DENYING THE WRIT... 22... 2. cc eee 6

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE

PETITIONER HAS NOT ESTABLISHED CONFLICT AMONG

COURTS OR PRESENTED AN UNSETTLED QUESTION OF

FEDERAL LAW. ....... 0... eee nena 6

CONCLUSION 2... . cc ccc cc ce ee eee eee ene e ees 12

TABLE OF CITATIONS

Cases

Alcegaire v. State,

B26 So. 3d 656 (Fla. 2021) .......cecccccecccceecccseccecsecceesseuceeeeseseeceececeecceseesecetaneuseutans 1,6

Alcorta v. Texas,

855 U.S. 28 (1957).........ccccceccccccecesssnsssssesnecncececcanaeaaesseeesuasneeessaneaseasceecceneeaessaeeeceeearees 7

Brady v. Maryland,

B73 U.S. 83 (1988)........ccecccccccccsececesececeeececececeeseeeecsesueceseneesaasusesseseeeseesceeseseseseeedeeenseens 8

Giglio v. United States,

AOS U.S. 150 (1972)...cccceseccecessesceseccecsescessecseseesecsesseseceeseesesucaesesensessessesaesseees 5, 6, 7, 10

Kyles v. Whitley,

514 U.S. 419, 185 (1995) oo ceccsssececeseessssneccescncecnceecsecseeeseseeeesssnneeeeeeeeeesazes 10

Napue v. Illinois,

360 U.S. 264 (1959)... cee ecccesccsenssesccccenssececceeeasccseaseceuasecseesecececeuseseseuegeseeseeeaaaseess 7

Pyle v. Kansas,

817 U.S. 218 (1942)... ecce cece cece ce ceceeneesees a ssssessssseneeseneeeeeeesaaaeaaaaasscesessessnsesssesaneaneaees 7

Ramsaran v. State,

664 So. 2d 1106 (Fla. 4th DCA 1995)... ccc ceseesseeeseesseesseesssceesereeessessssaeeesecees 11

Rockford Life Insurance Co. v. Illinois Dept. of Revenue,

ABZ U.S. 182 (1987)..........ccccsecccccessssceccensseseccenecsssceceecesecsescseaeseeseneeeseessagenteccenacneeneseees 6

Tolan v. Cotton,

134 S. Ct. 1861 (2014)... cece ceescsccscecscesecccecececenceeesseeeecceeceeseceeeseeeeeeuceeresererensees 6

United States v. Agurs,

AZT U.S. 97 (19TG).......ccceccccccccecccececececeeceuseceenessesusesesuseeseseceeeuesscsssesesssesessessesssenegeareres 7

United States. v. Bagley,

473 U.S. G67 (1985)..........ccceccccceccccccceecceecssseseeeeeeseeeecnaaenecenecaseeeseesseaecaseseeaneeeeceseneeeeeen 7

Wearry v. Cain

B77 U.S. 885 (2016)... cccccccccccccccccccccceecceceeceecsecevsnecesceseeseeneessesesecesereesnssassusscreeensecees 7

Other Authorities

2B ULS.C. § 1257 (a)... ececcccccccscccsesaceccceeeccceeeceeseeceeeseeeeeeeeeaeaaesssessssesesesseeeseeesesesseesnaceees 1

Fla. R. Crim. P. 3.200 0200... cee ceecceecceeceecececceccsccceceececcsececceccscesscuseceecessesseavsnsereess 11

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at Alcegaire v. State,

326 So. 3d 656 (Fla. 2021).

JURISDICTION

The judgment of the Florida Supreme Court was entered on September 9,

2021. A motion for rehearing was denied on October 27, 2021. (Pet. App. B).

Petitioner invokes the jurisdiction of this Court based upon 28 U.S.C. § 1257(a).

Respondent agrees that this statutory provision sets out the scope of this Court's

certiorari jurisdiction, but submits that this case is inappropriate for the exercise of

this Court's discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF CASE

Petitioner was indicted for the murders of David W., Eneida B., and Angelica

C., and the attempted murder of Felix C. At the time of the murders, all four lived

at 2314 East Magnolia Street in Lakeland. Evidence adduced at trial established

that they were engaged in the sale of narcotics and made regular short trips to

Miami. Text messages found in cell phones belonging to the three homicide victims

showed regular communications and commercial transactions with Miami resident

Andrew Joseph. It was later established that Alcegaire was living with Joseph.

Felix testified that David, Eneida, and Angelica returned from a brief visit to

Miami around 4 am on January 6, 2016. Everyone was in bed when approximately

two hours later, a U-Haul van pulled up in front of the residence. Felix heard a

knock at the door and then observed Alcegaire and another man, later identified as

Jamaal Smith, inside the house talking with David. Alcegaire entered Felix's

bedroom briefly; Smith then entered Felix's room and shot him in the face before

returning to David, whom he began beating with a metal barstool. Felix heard near

simultaneous shots from the bedrooms where Eneida and Angelica were sleeping,

and finally observed Smith shoot David twice in the head. The men began

ransacking the residence, took what they could, and left in the van. Felix, who was

bleeding profusely, quickly determined that his friends were dead and called 911.1

Subsequent investigation by law enforcement secured surveillance video from

local businesses showing a U-Haul van driving towards the site of the murders and

then, approximately 30 minutes later, coming back. U-Haul records from Miami

confirmed that Andrew Joseph had rented the van on January 5, returning it the

following day. It had been driven over 500 miles, approximately the distance of a

round trip from Miami to Lakeland. Law enforcement found a latex glove

containing 9 mm bullets in the van's cupholder, similar to bullets used at the crime

scene. Photographs from toll stations along the Florida Turnpike showed Alcegaire

wearing a distinctive straw hat and Jamaal Smith wearing a ball cap in the front

1 After the trial Felix, who was an understandably reluctant witness, stated that

while he heard Alcegaire's voice in the house, he was no longer certain that he saw

him. Petitioner's suggestion that Felix fully recanted his testimony placing

Alcegaire at the crime scene is, unfortunately, incomplete and misleading.

seats as the van drove towards Lakeland and then returned to Miami. Felix

testified that some men, including Alcegaire and Smith, had been at the house on

December 27. Information from David's cell phone corroborated this testimony

because David sent his home address to Alcegaire on that date.

After Alcegaire's arrest, law enforcement searched his phone and found the

call log and all text messages to David deleted. But on January 3, 2016, a few days

before the murders, Alcegaire had searched the internet for information inquiring

about 2031 West Magnolia Street in Lakeland. At trial, defense counsel used this

information, despite the absence of any other evidence to support it, to argue that

Alcegaire was delivering narcotics to the West Magnolia Street address and was not

involved in the events that took place at 2314 East Magnolia Street.

In rebuttal, the prosecutor showed the jury an enlarged street map of

Lakeland as a demonstrative aid, and argued as follows:

"(O]ne thing I would ask you to think about is:

What drug dealer is going to come from Miami to Polk

County to deliver drugs at 6:19 in the morning? I don't

think there's many drug dealers that are going to be very

pleased to be woke up at 6:19 in the morning. So common

sense is going to tell you that.

I also want you to look at those phone records from

Johnathan Alcegaire, and you are going to notice that

between January 5th and January 6th, there are no

phone calls to any 863 numbers here in Polk County.

As a matter of fact, you're not going to find any

phone calls to really anybody, other than his brother,

Tavaris Mack, Jamaal Smith, regarding the time frame

that fits this crime that he could possibly be delivering

drugs to.

So it doesn't really fit the bill that Mr. Carmichael

is trying to sell. So I want you to use your common sense

as you try to think about whether or not he's coming to

Polk County to deliver drugs.

I also want you to think about that whole ‘we're

going to West Magnolia,’ because I did decide to figure

out, where is that 2301 (sic) West Magnolia? And it's on

the complete opposite side of Lakeland. So if you're trying

to get to 2314, which is way over here, which is where our

crime scene is here, 2301 is way over here. And if you

know Lakeland, we're kind of divided down the middle

here by Massachusetts [Avenue]. So 2301 is way over

there by I-4.

So when they're leaving our crime scene, which we

know they traveled [U.S. Highway] 92, because we've got

them on the red light camera video, now, they might stop

by their friend's house at 2301 then, but I don't think they

are turning on Fairway [Street] to go around the lake to

go to 23801.

[objection by defense and argument omitted here]

As I was saying, you can see by the demonstrative

aids that I prepared for you that West Magnolia is on the

complete and opposite side of Lakeland. So obviously, the

defendant is not going to West Magnolia, as you saw -- or

as was indicated in the extractions that were in his phone

or noted in his phone. IJ don't know if that was a mistake

when he was looking something up.

I don't know if that was an address that he was

intending to visit on another time. I don't know what that

was. I don't have to prove to you what that was, but that

clearly isn't something that he was going to do on January

the 5th, January the 6th, or December 27th.

So clearly, ladies and gentlemen, your common

sense needs to come into play when you think about those

things.

And again, look at the cell phone records. He's not

here to deliver drugs on January the 6th. He's here to go

to 2314 East Magnolia Street.

(DAR 2851-2858).

On appeal, Petitioner claimed, inter alia, that the prosecutor's "false"

argument (that Alcegaire was "obviously" not going to West Magnolia on January

6th) violated Giglio v. United States, 405 U.S. 150 (1972). It is noteworthy that

Petitioner relied on the State's Lakeland map in his argument before the Florida

Supreme Court and has never claimed it was inaccurate or false.

Florida's high court rejected Petitioner's claim that the prosecutor

deliberately offered false or misleading argument, noting that the red light camera

footage indicated that the van was "in the vicinity" of the West Magnolia Street

address shortly after the murders. Moreover, the State's use of the map was proper;

witness testimony relating to the various addresses had been received by the jury,

and, the Court concluded, the map provided a visual demonstration of their relative

locations. (Petitioner's App. A p. 10-11).

Petitioner now seeks certiorari review of the Florida Supreme Court’s

decision.

REASONS FOR DENYING THE WRIT

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE

PETITIONER HAS NOT ESTABLISHED CONFLICT AMONG

COURTS OR PRESENTED AN UNSETTLED QUESTION OF

FEDERAL LAW.

Petitioner requests that this Court review the Florida Supreme Court's

opinion rejecting his claim that he is entitled to relief pursuant to Giglio v. United

States, 405 U.S. 150 (1972). Petitioner contends that the prosecutor's "false"

argument should have been resolved using a Giglio analysis rather than the abuse

of discretion standard employed by Florida's high court.

Petitioner does not provide any compelling reason for this Court to review his

case. Indeed, Petitioner cannot cite to any decision from this or any appellate court

that conflicts with the Florida Supreme Court’s decision in Alcegaire v. State, 326

So. 3d 656 (Fla. 2021) that the prosecutor's argument was not deliberately false or

misleading. Cases that do not divide the federal or state courts or that do not

present important, unsettled questions of federal law usually do not merit certiorari

review. Rockford Life Insurance Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 184,

n.3 (1987). No conflict or unsettled question of federal law is presented in the

instant petition. Moreover, mere correction of perceived state court error is typically

not an adequate basis for certiorari review. Tolan v. Cotton, 134 S. Ct. 1861, 1868

(2014) (Alito, J., concurring) (citations omitted) (“error correction . . . is outside the

mainstream of the Court’s functions and . . . not among the ‘compelling reasons .. .

that govern the grant of certiorari.”)

Alcegaire incorrectly asserts that the legal analysis conducted by the Florida

Supreme Court below was a flawed application of this Court’s precedent in Giglio.

Petitioner’s argument merely reflects his disagreement with the Florida high court’s

opinion. To support his quest for certiorari review, Alcegaire references numerous

opinions of this Court which, in his view, mandate a conclusion that he is entitled to

relief. All are easily distinguished, however.

For example, Pyle v. Kansas, 317 U.S. 213 (1942) involves a claim that the

prosecution knowingly used perjured testimony. Similarly, in Alcorta v. Texas, 355

U.S. 28 (1957) the State knowingly permitted a witness to testify falsely. In Napue

v. Illinois, 360 U.S. 264 (1959) the prosecution knowingly elicited false testimony

from its principal witness that he had been given no promise of consideration in

exchange for his testimony. In United States. v. Bagley, 473 U.S. 667 (1985) the

prosecutor failed to disclose material evidence that could have been used to impeach

the government's witnesses. Finally, in Wearry v. Cain, 577 U.S. 385 (2016) the

prosecution withheld material evidence that might have been used to impeach the

State's witnesses. The common thread among all of these cases is use of false

testimony, known to be false by the prosecution, which was in some way material in

that it unfairly damaged the defense case. Materiality is defined in United States v.

Agurs, 427 U.S. 97 (1976) as undisclosed evidence that, had it been used, creates a

reasonable doubt of guilt that did not otherwise exist.

Alcegaire makes no claim here that any evidence was either false or

withheld; rather, his challenge has to do with the State's argument which, in his

view, was false. This is clearly not the type of claim that either Brady? or Giglio was

intended to address, however, as examination of the facts of Alcegaire's case

demonstrates.

Petitioner asserted in his closing argument that he was not at the murder

scene on East Magnolia Street, but was instead conducting a narcotics sale some

distance away at 2031 West Magnolia. Alcegaire did not testify and there was no

evidence supporting this claim. During cross examination of Detective McPherson,

defense counsel showed him a map (R. 2399, 2562, 2577) depicting 2431 East

Magnolia and other nearby streets. Detective McPherson agreed that the West

Magnolia Street address (which was not depicted on the map McPherson was

referencing at the time) was west of the crime scene, although he did not know the

exact distance. This witness also testified that Alcegaire's Internet search regarding

the West Magnolia address was made January 3, three days prior to the murders.

There was no other evidence to support Alcegaire's alibi. Defense counsel argued for

the first time in closing, without notice to the State, that Aleegaire was conducting a

narcotics sale on West Magnolia at the time of the murders. As both parties had

already rested their cases, the State's only opportunity to respond would be in its

closing rebuttal.

Accordingly, the State produced a larger street map and, over defense

objection, showed the jury the relative locations of East and West Magnolia Streets,

2 Brady v. Maryland, 373 U.S. 83 (1983)

arguing that it was "obvious" that Alcegaire was not dealing drugs elsewhere in

Lakeland at the time of the murders. It was obvious, the State argued, not only

because of the distance between the two locations, but also because Alcegaire's cell

phone showed that the only calls he made in the days prior to leaving Miami were

to Jamaal Smith or Andrew Joseph. If Alcegaire had arranged to do other business

while in Lakeland, the prosecutor argued, how did he accomplish that without

making any calls?

Of equal significance here is the fact that Alcegaire has never challenged the

accuracy of the map used by the prosecution. Rather, his complaint has consistently

been with the prosecution's argument, which he contends was "false" - not because

the map itself was inaccurate, but because (in Alcegaire's view) the argument is not

strongly supported by the evidence.

It is important to keep in mind, however, that the map was in full view of the

jury while the State's argument was being made; this is not a case where the

prosecution withheld evidence and then deliberately misled the jury. To the

contrary, the jury was fully capable of gauging the strength of the State's argument

because they could see that the road taking the killers to and from the murder scene

was at least arguably in the vicinity of West Magnolia Street. Giglio was intended

3 Alcegaire confuses the evidence adduced at trial with the map used by the

prosecution as a demonstrative aid. The map was never entered into evidence, but

was adopted as a court exhibit for purposes of the record. Accordingly, to the extent

that Alcegaire's argument relies upon the map as "evidence," it should be rejected.

The jury was repeatedly told that what the attorneys say is not evidence, and the

to address circumstances where the State knowingly allows material, false evidence

to stand uncorrected, not grant relief where a prosecutor makes an argument

defense counsel disagrees with.

Even if we were to assume that Giglio applies here, examination of the

materiality component demonstrates the flaw in Alcegaire's position. Under Kyles v.

Whitley, 514 U.S. 419, 135 (1995), materiality is established by assessing whether

the false evidence in question undermines confidence in the jury's verdict. Of

course, there is no false evidence here, but only what Alcegaire contends was false

argument. If we were to stretch Giglio to the point where it arguably applies to

closing argument, presumably the proper analysis would be to assess the validity of

the verdict without the map or any argument relating to the location of the two

addresses.

What remains is an eyewitness who identified Alcegaire as being present

during the shootings, plus the fact that Alcegaire called no one in Lakeland in the

days prior to the murders, which presumably would be a prerequisite if one were

hoping to arrange a drug transaction in a place 250 miles away. Other than the fact

that three days before the murders Alcegaire happened to look for the West

Magnolia address on his cell phone, there is literally no evidence to contradict

Felix's testimony that Alcegaire was present when the three victims were killed.

Notably, Alcegaire did not respond when the State, pursuant to Florida Rule of

map, because it was used as a demonstrative aid rather than introduced as

evidence, is the functional equivalent.

Criminal Procedure 3.200, demanded to know whether he intended to claim an alibi

defense. Nor did Alcegaire bother to request an alibi instruction.4 Compliance with

either of these would have required him to disclose, or at least point to, some

evidence supporting an alibi. Alcegaire's claimed alibi is so weak that it rests

entirely on the fact that he happened to look up a different Lakeland address a few

days before the victims were killed. The State's argument that Alcegaire was

obviously not dealing drugs on West Magnolia is a reasonable inference that is

supported by record evidence.

Because the Florida Supreme Court’s decision does not conflict with any

decision of this Court or involve an important, unsettled question of federal law,

this Court should decline to exercise its certiorari jurisdiction in this case.

4 Florida law permits a defendant to request an alibi instruction but requires at

least some evidence to support it. Ramsaran v. State, 664 So. 2d 1106 (Fla. 4th DCA

1995).

CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court

DENY the petition for writ of certiorari.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL

STATE OF FLORIDA _, 4

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CAROLYN M. SNURKOWSKI /