Petition for Writ of Certiorari — Kevin J. Koelemij, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

No.

IN THE

SUPREME COURT OF THE UNITED STATES

KEVIN KOELEMIJ,

Petitioner,

v.

SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

On Petition for Writ of Certiorari

to the Eleventh Circuit Court of Appeals

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

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

A-1

TABLE OF CONTENTS

Document

Page

1.

May 12, 2025, order of the Eleventh

Circuit Court of Appeals . . . . . . . . . . . . . . . A-3

2.

September 16, 2024, judgment of the

Northern District of Florida Court . . . . . . . A-7

3.

Excerpt of September 16, 2024, order of

the Northern District of Florida Court. . . . A-8

4.

Excerpt of June 26, 2024, Report and

Recommendation, Pages 12-20 . . . . . . . . . A-10

5.

Excerpts of Transcript of July 3, 2018,

Trial, Pages 50-52 and 89-91 . . . . . . . . . . A-23

6.

Excerpt of Transcript of July 2, 2018,

Jury Selection, Pages 89-90 . . . . . . . . . . . A-31

7.

July 10, 2018, Motion to Disqualify . . . . . A-34

8.

July 13, 2018, Motion for New Trial . . . . A-44

A-2

In the

United States Court of Appeals

For the Eleventh Circuit

________________________

No. 24-13381

________________________

KEVIN J. KOELEMIJ,

Petitioner-Appellant,

versus

SECRETARY DEPARTMENT OF CORRECTIONS

STATE OF FLORIDA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Flroida

D.C. Docket No. 4:21-cv-00373-AW-ZCB

________________________

ORDER:

[Page 2:]

2

Order of the Court

24-13381

Kevin Koelemij, a Florida prisoner, filed a

A-3

counseled amended 28 U.S.C. § 2254 petition,

asserting, as relevant, that the state trial court erred

when it denied his motions for a new trial and to

disqualify the trial judge, based on comments that the

judge made when counsel asked Mr. Koelemij to stand

up at trial during the testimony of one witness (Ground

One). The district court denied Mr. Koelemij’s § 2254

petition, and he appealed and now moves for a

certificate of appealability (“COA”) on Ground One.

In order to obtain a COA, a petitioner must

make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). For claims

denied on substantive grounds, the petitioner must

show that “reasonable jurists would find the district

court’s assessment of the constitutional claims

debatable or wrong” or that the issues “deserve

encouragement to proceed further.” Slack v. McDaniel,

A-4

529 U.S. 473, 484 (2000) (quotation marks omitted).

Here, reasonable jurists would not debate the

district court’s denial of Ground One. See id. The

district court properly concluded that Mr. Koelemij did

not explain how the First District Court of Appeal’s

(“First DCA”) findings were unreasonable or contrary

to clearly established federal law. See 28 U.S.C. §

2254(d)(l), (2). As to his argument that his due process

rights were violated by the state trial court’s

comments, the district court properly found that the

First DCA reasonably found that the admonishment

was brief, and even if the judge seemed stern or

impatient, that did not establish a valid ground for

recusal, even under

[Page 3:]

24-13381

Order of the Court

3

state law. See Birotte v. State, 795 So. 2d 112, 113 (Fla.

A-5

Dist. Ct. App. 2001) (“[A] judge’s expression of

dissatisfaction with counsel’s ... behavior does not give

rise to a reasonable fear of bias or prejudice”).

Further, the First DCA reasonably explained

that, because Mr. Koelemij’s counsel stated on record

at trial that the trial court’s comments did not

prejudice Mr. Koelemij, and the court gave a curative

instruction that it did not prefer one verdict over

another, Mr. Koelemij did not suffer any bias or

prejudice, such to establish fundamental unfairness at

trial to entitle him to federal habeas relief. Thus, the

First DCA properly rejected Mr. Koelemij’s argument

that the state trial court erred when it denied his

motions for a new trial and to disqualify the judge.

Accordingly, Mr. Koelemij’s motion for a COA is

DENIED.

[signature of Judge Jill A. Pryor]

UNITED STATES CIRCUIT JUDGE

A-6

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KEVIN J. KOELEMIJ,

Petitioner,

v.

Case No. 4:21-cv-373-AW-ZCB

SECRETARY, DEP’T OF

CORRECTIONS,

Respondent.

_______________________/

JUDGMENT

The § 2254 petition is denied.

JESSICA J. LYUBLANOVITS

CLERK OF COURT

September 16, 2024

Date

s/ KELLI MALU

Deputy Clerk: Kelli Malu

1

A-7

Excerpt of September 16, 2024,

Order Denying § 2254 Petition

Pages 1 & 61

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KEVIN J. KOELEMIJ,

Petitioner,

v.

Case No. 4:21-cv-373-AW-ZCB

SECRETARY, DEP’T OF

CORRECTIONS,

Respondent.

_______________________/

ORDER DENYING 2254 PETITION

Having carefully considered the matter de novo,

I now adopt the report and recommendation (ECF No.

1

The remaining pages of the District Court’s

order address claim 2 of the Petitioner’s 2254 petition,

which is not relevant to the instance petition.

A-8

27) and incorporate it into this order. The objections

(ECF No. 34) are overruled. The clerk will enter a

judgment that says, “The § 2254 petition is denied.”

And because there has been no substantial showing of

the denial of any constitutional right, a certificate of

appealability is denied.

....

The clerk will close the file.

SO ORDERED on September 16, 2024.

s/ Allen Winsor

United States District Judge

6

A-9

Excerpt of June 26, 2024, Report and

Recommendation,

Pages 12-20

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KEVIN J. KOELEMIJ,

Petitioner,

vs.

Case No.: 4:21cv373/AW/ZCB

SECRETARY FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

[Page 12:]

A. Ground 1: The state trial court erred by

denying Petitioner Koelemij’s motion for new trial and

motion to disqualify.

In Ground 1, Petitioner claims the trial court

violated his right to a fair trial and sentencing by

rebuking Petitioner and his attorney in front

A-10

[Page 13:]

of the jury and then refusing to recuse from the case.

(Doc. 4 at 6-13; Doc. 21 at 3-5). Petitioner raised these

arguments before the trial court in a motion for new

trial, as well as a motion to disqualify. (Doc. 8-3 at 75,

85). The trial court denied both motions. (Doc. 8-3 at

89, 90).

The basis for those motions was an exchange the

trial judge had with Petitioner and his attorney during

the testimony of the victim, T.S. When the prosecution

asked T.S. to identify the perpetrator of the offense,

Petitioner started to rise from his seat without

warning or being instructed to do so. Upon seeing

Petitioner start to stand, the trial judge ordered him to

“sit down.” (Doc. 8-4 at 54). Petitioner’s counsel then

informed the judge that he had told Petitioner to stand

up. That led to the following exchange between the

A-11

judge and Petitioner’s counsel:

Judge: “Okay. Well, I’m telling—I’m

ordering him—

Counsel: “I understand. I just didn’t want

the Court to—

Judge: “Okay. I don’t need to hear

anything from you.”

Counsel: “Right.”

(Id.). Later in the trial when the jury was on a break,

Petitioner’s counsel objected to the judge admonishing

him and Petitioner in the presence of

[Page 14:]

the jury. (Id. at 92). Petitioner’s counsel said the judge

“yell[ed]” at him. (Id.). Although Petitioner’s counsel

was unhappy about the admonishment in front of the

jury, he admitted that “I don’t think it’s affected the

outcome of this trial.” (Id. at 93). For her part, the

A-12

judge denied yelling. The judge explained that she was

surprised to see Petitioner starting to stand during the

testimony, so she took action to maintain control of the

trial. (Id.).

In his appeal to the First DCA, Petitioner

argued the trial court should have granted his motion

for new trial and motion disqualify based on the

admonishment.

The

First

DCA

rejected

those

arguments and affirmed in a written opinion. (Doc.

8-10 at 2-11). According to the First DCA, the trial

court’s admonishment of Petitioner and his counsel

“was in accord with its duty to maintain order in the

courtroom.” (Id. at 6). And the First DCA explained

that “the Court’s admonishment did not prejudice”

Petitioner. (Id. at 7). The First DCA further explained

that “the trial court properly denied [Petitioner’s]

motion for disqualification as legally insufficient

A-13

because the court’s reprimand did not give rise to a

reasonable belief that the trial court was biased.” (Id.

at 10).

[Page 15:]

In his § 2254 petition, Petitioner takes issue

with the rejection of his arguments by the state courts.

Because the arguments were adjudicated on the

merits, Petitioner cannot obtain habeas relief unless he

satisfies the standard in § 2254(d). Thus, he must show

the state court’s decision “was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States” under § 2254(d)(1), or “was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding”

under § 2254(d)(2). Kilgore v. Sec’y, Fla. Dep’t of Corr.,

805 F.3d 1301, 1309 (11th Cir. 2015) (quoting 28

A-14

U.S.C. § 2254(d)).

Petitioner has not explained how the state

court’s factual findings were unreasonable. Thus, he is

not entitled to relief under § 2254(d)(2). The Court will

now turn to § 2254(d)(1), which requires Petitioner to

show that the state courts rendered a decision that was

contrary to, or involved an unreasonable application of,

clearly established federal law. To meet this standard,

Petitioner must show that the state court’s application

of federal law was “so obviously wrong that its error

lies beyond any

[Page 16:]

possibility for fairminded disagreement.” Shinn, 592

U.S. at 118 (cleaned up).

Petitioner claims that the state courts rendered

a decision that was contrary to, or involved an

unreasonable application of, his clearly established

A-15

federal right to a fair trial and sentencing by

admonishing him and then failing to recuse upon

request. There is no merit to Petitioner’s claims.

The Due Process Clause of the Fourteenth

Amendment “clearly requires a fair trial in a fair

tribunal.” Bracy v. Gramley, 520 U.S. 899, 904 (1997)

(cleaned up). Encompassed within that right is the

guarantee of a trial conducted by an impartial judge.

Id. A judge’s comments may violate that right if the

comments “demonstrate such pervasive bias and

unfairness that they prejudice one of the parties in the

case.” United States v. Verbitskaya, 406 F.3d 1324,

1337 (11th Cir. 2005). Put another way, “a clear effect

on the jury is required to reverse for comment by the

trial judge.” United States v. Morales, 868 F.2d 1562,

1576 (11th Cir. 1989). A trial judge is “not a mere

moderator or observer, but is responsible for the tone

A-16

and tempo of the proceedings, [and] may

[Page 17:]

comment on the evidence and may exercise his

discretion to curtail pursuit of irrelevant matters.”

United States v. Butera, 677 F.2d 1376, 1382 (11th Cir.

1982). “An occasional lapse of patience [by the judge] is

insufficient to overturn [a defendant’s] convictions.”

United States v. Delorme, 432 F. App’x 886, 889 (11th

Cir. 2011).

Here, the First DCA held that the trial judge’s

admonishment of Petitioner and his counsel “was in

accord with its duty to maintain order in the

courtroom” and “did not prejudice” Petitioner. (Doc.

8-10). Having reviewed the record, the Court finds that

decision was neither contrary to, nor involved an

unreasonable application of, clearly established federal

law. The trial judge’s admonishment was brief, and it

A-17

represented a reasonable response to what the judge

perceived as a potential disruption to the orderly and

efficient presentation of evidence at the trial. This is

plainly not a case involving “repeated indications of

impatience and displeasure of such nature to indicate

that the judge thinks little of counsel’s intelligence and

what he is doing.” Delorme, 432 F. App’x at 888

(cleaned up). Moreover, as Petitioner’s counsel

admitted, the trial judge’s admonishment was

insufficient to actually prejudice

[Page 18:]

Petitioner. (See Doc. 8-4) (“I don’t think it’s affected the

outcome of this trial. . . .”). Because “a clear effect on

the jury is required to reverse for comment by the trial

judge, Morales, 868 F.2d at 1576, the First DCA’s

rejection

of

this

argument

was

reasonable.

Additionally, the trial court’s instruction for the jury to

A-18

“please disregard anything I may have said or done

that made you think I preferred one verdict over

another” (Doc. 8-4 at 133) mitigated any potential

prejudice. See Verbitskaya, 406 F.3d at 1337) (finding

that instruction to the jury reduced possible prejudice

from comments made by the judge); see also Delorme,

432 F. App’x at 889 (same). Thus, Petitioner is not

entitled to habeas relief based on his claim that the

trial judge violated his right to a fair trial by

admonishing him and his attorney in the presence of

the jury.

Similarly, Petitioner is not entitled to habeas

relief on the claim that his right to a fair trial and

sentencing was violated when the trial judge failed to

recuse after issuing the admonishment. It is a violation

of due process for a judge who is actually biased to not

recuse from a proceeding. Davis v. Jones, 506 F.3d

A-19

1325, 1336 (11th Cir. 2007). But an appearance of

bias—which may require recusal under ethics rules or

[Page 19:]

state law—is insufficient to constitute a violation of

due process. Id. (explaining that recusal statutes

“establish[] stricter grounds for disqualification than

the Due Process Clause” and recognizing the absence

of Supreme Court precedent holding “that the type of

appearance [of bias] problem alleged here violates the

Due Process Clause”).

According to the Supreme Court “judicial

remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties,

or their cases, ordinarily do not support a bias or

partiality challenge.” Liteky v. United States, 510 U.S.

540, 555-56 (1994). Such remarks may only require

disqualification “if they reveal an opinion that derives

A-20

from an extrajudicial source,” or “if they reveal such a

high degree of favoritism or antagonism as to make fair

judgment impossible.” Id. at 555. A trial judge’s

“ordinary efforts at courtroom administration—even a

stern and short-tempered judge’s ordinary efforts at

courtroom administration” are insufficient to show

bias. Id. at 556.

Here, the First DCA’s rejection of Petitioner’s

argument that the trial judge should have recused was

neither contrary to, nor an

[Page 20:]

unreasonable application of, the clearly established

precedent discussed above. The First DCA applied the

proper standard and its analysis was not “so obviously

wrong that its error lies beyond any possibility for

fairminded disagreement.” Shinn, 592 U.S. at 118.

There is nothing in the record to show that the trial

A-21

judge was actually biased against Petitioner. The trial

judge admonished Petitioner and his counsel as part of

“ordinary efforts at courtroom administration,” and the

admonishment did not come close to “reveal[ing] such

a high degree of favoritism or antagonism as to make

fair judgment impossible.” Liteky, 510 U.S. at 556.

Accordingly, Petitioner is not entitled to habeas relief

on Ground 1.

A-22

Excerpts of Transcript of July 3, 2018,

Trial,

Pages 50-52 and 89-91

[Page 1:]

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN

AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2015 CF 972

STATE OF FLORIDA,

vs.

KEVIN KOELEMIJ,

Defendant.

____________________/

PROCEEDINGS: JURY TRIAL AND VERDICT

BEFORE:

DATE:

THE HONORABLE ANGELA C.

DEMPSEY

JULY 3, 2018

TIME:

Commencing at 8:40 a.m.

Concluding at 2:14 p.m.

LOCATION:

Leon County Courthouse

Tallahassee, Florida

A-23

REPORTED BY:

LISA BABOCK, Official Court

Reporter

Notary Public in and for the

State of Florida at Large

LISA BABCOCK

Official Court Reporter

Leon County Courthouse, Room 341

Tallahassee, FL 32301

LISA BABCOCK, OFFICIAL COURT REPORTER

[Page 2:]

APPEARANCES

REPRESENTING THE STATE:

LORENA M. VOLLRATH-BUENO, ESQUIRE

ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY

LEON COUNTY COURTHOUSE

TALLAHASSEE, FLORIDA 32301

REPRESENTING THE DEFENDANT:

DON PUMPHREY, JR., ESQUIRE

553 EAST TENNESSEE STREET, SUITE 3

TALLAHASSEE, FLORIDA 32308

INDEX

WITNESSES:

PAGE:

A-24

T.S.

Direct Examination by Ms. Vollrath-Bueno

Cross-Examination by Mr. Pumphrey

Redirect Examination by Ms. Vollrath-Bueno

31

52

80

JEFF CAPLAN

Direct Examination by Ms. Vollrath-Bueno

Cross-Examination by Mr. Pumphrey

Redirect Examination by Ms. Vollrath-Bueno

94

105

107

R.C.

Proffered Direct Examination by

Ms. Vollrath-Bueno

111

State’s Exhibit 1

99

Certificate or Reporter

162

LISA BABCOCK, OFFICIAL COURT REPORTER

[Page 50:]

....

Q And do you see the person who you know to

be Kevin

[Page 51:]

Koelemij in the courtroom here today?

A-25

A Yes, ma’am.

Q Will you please describe something that

he’s wearing –

THE COURT: Sit down.

MR. PUMPHREY: I asked him to stand up,

Judge, for identification.

THE COURT: Okay. Well, I’m telling – I’m

ordering him –

MR. PUMPHREY: I understand. I just didn’t

want the Court to –

THE COURT: Okay. I don’t need to hear

anything from you.

MR. PUMPHREY: Right.

BY MS. VOLLRATH-BUENO:

Q Mr. [T.S.], if you could identify what he’s

wearing for the record.

A Yes, ma’am. It’s going to be a red tie, light

blue shirt and a gray coat.

MS. VOLLRATH-BUENO: We ask the record

reflect that the witness has identified the defendant

in this case.

I have nothing further at this time, Your

Honor.

A-26

THE COURT: Okay. Cross?

MR. PUMPHREY: Judge, I need to put some

things on the record if I may.

[Page 52:]

THE COURT: I don’t know what you’re

talking about. I want you to ask him questions right

now.

MR. PUMPHREY: Right. Judge, my prior

objection, I just need to put –

THE COURT: Well, you’re going to have to do

that later. Do you have questions for Mr. T.S.?

MR. PUMPHREY: I do, Judge.

CROSS EXAMINATION

BY MR. PUMPHREY:

Q Mr. [T.S.], good morning. . . .

[Page 89:]

....

THE COURT: What would – what did you

want to put on the record, Mr. Pumphrey? . . .

A-27

MR. PUMPHREY: Okay. I want to make it

clear to the Court that I instructed Mr. Koelemij, as I

do in every case, the hundreds of cases I’ve tried,

when it comes to identification to make sure there’s

no question of identification or anything else. And

I’m unaware of this Court and the number of trials

I’ve had before it, but I told Mr. Koelemij to stand.

THE COURT: I know. You said that.

MR. PUMPHREY: Okay. But the Court’s

demeanor in front of the jury was troubling to me. I

enjoy practicing before this Court, but when the

Court yells directly at my client and then when I

respond, the Court’s demeanor is less than

appropriate, in my – in my professional opinion, I

don’t think that is biding well

[Page 90:]

for the Court, I don’t think it’s biding well for the

jurors, I don’t think it is biding well for the

defendant.

That having been said, I don’t think it’s

affected the outcome of this trial, in all candor, to put

that on the record, but I’d like to know what it is I

did to solicit that from the Court in front of the jury.

I have no problem with this Court dressing me down,

but in front of the jury is what concerns me.

THE COURT: Okay. Well, it’s my

responsibility to control the flow of the trial, and the

only time anyone should be standing is when the

A-28

lawyers are addressing the Court or questioning

witnesses.

MR. PUMPHREY: I will follow that from this

point forward, Your Honor.

THE COURT: Okay. And I never yelled at

anybody.

MR. PUMPHREY: Well, I disagree, Your

Honor, but that’s your opinion. I’ll respect it. But I –

I don’t raise these issues. In fact, I’ve been

practicing for over 20 years; I’ve never raised this

issue with any judge in this jurisdiction. But today I

saw a lot of anger, your voice was raised, you yelled

at my client.

THE COURT: Okay. I definitely did not yell

at him. I just had no – I didn’t know you had told

him that. I had no idea why he was standing up. He

was late

[Page 91:]

yesterday and he wore that – some pen yesterday to

try to communicate with the jury, and so then when

he stood up, I just told him to sit down.

Is there anything else you wanted to put on

the record, Mr. Pumphrey?

MR. PUMPHREY: Judge, Mr. Koelemij is not

wearing any pens, per the Court –

A-29

THE COURT: Today he’s not, correct.

MR. PUMPHREY: Right, today.

THE COURT: Was there anything else –

MR. PUMPHREY: He was wearing – he was

wearing pens the other day and I told him he needed

to not wear them.

THE COURT: Actually, I ordered him to not

wear those.

So anything else that you were talking about

before that you wanted to put on the record?

MR. PUMPHREY: No, Your Honor.

A-30

Excerpt of Transcript of July 2, 2018,

Jury Selection,

Pages 89-90

[Page 1:]

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN

AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

KEVIN KOELEMIJ,

Defendant.

____________________/

PROCEEDINGS: JURY SELECTION

BEFORE:

THE HONORABLE ANGELA C.

DEMPSEY

DATE:

JULY 2, 2018

TIME:

Commencing at 8:30 a.m.

Concluding at 11:15 a.m.

LOCATION:

Leon County Courthouse

Tallahassee, Florida

A-31

REPORTED BY:

SUE ELLEN MELLO, RPR

Official Court Reporter

State of Florida at Large

SU ELLEN MELLO, RPR

Official Court Reporter

Leon County Courthouse, Room 341

Tallahassee, FL 32301

[Page 2:]

APPEARANCES

REPRESENTING THE STATE:

LORENA M. VOLLRATH-BUENO, ESQUIRE

ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY

LEON COUNTY COURTHOUSE

TALLAHASSEE, FLORIDA 32301

REPRESENTING THE DEFENDANT:

DON PUMPHREY, JR., ESQUIRE

553 EAST TENNESSEE STREET, SUITE 3

TALLAHASSEE, FLORIDA 32308

Certificate of Reporter:

91

A-32

[Page 89:]

....

THE COURT: Okay. And, Mr. Koelemij, I

don’t know what that pin says that you have on your

lapel, but you’re not going to be wearing that pin or

any other pins tomorrow during the trial.

THE DEFENDANT: Okay.

THE COURT: Okay. Or anything else that

communicates any type of message to the jury.

THE DEFENDANT: Okay.

[Page 90:]

....

THE COURT: 8:30. Okay, see you guys

tomorrow.

And make sure you’re not late tomorrow, Mr.

Koelemij. You were about five minutes late today.

A-33

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN AND

FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

CASE NO: 15-CF-972

v.

SPN: 2732

KEVIN J. KOELEMIJ,

Defendant.

VERIFIED MOTION TO DISQUALIFY

COMES NOW the Defendant, Kevin J. Koelemij,

by and through the undersigned counsel, pursuant to

Florida Rule of Judicial Administration 2.330, and

hereby files this Motion based on the following

grounds:

1. Defendant was found guilty at the conclusion

of a jury trial conducted by this Honorable Court on

July 3, 20 I 8. Sentencing is currently set for July 11.

2. Florida Rule of Judicial Administration

2.330(d) provides that a motion to disqualify the trial

court judge may be filed if the party fears that he or

A-34

she will not receive a fair trial or hearing because of

specifically described prejudice or bias of the judge."

Disqualification is required where the facts alleged and

established, which must be taken as true, would place

a reasonably prudent person in fear of not receiving a

fair

and

impartial

proceeding.

Kline

v.

JRD

Management Corp., 165 So. 3d 812, 814 (Fla. 1st DCA

2015).

3. Defendant fears that he will not receive a fair

and impartial sentencing after perceiving bias and

prejudice from this Court during the jury trial on July

3, 2018. The facts evidencing this reasonable fear and

the governing law are outlined below.

4. No motions to disqualify have been previously

filed in this case.

5. It is hereby certified that this motion and the

client’s statements are made in good faith.

A-35

[Page 2:]

DISCUSSION

During the identification phase of the State’s

direct examination of T.S., the alleged victim, defense

counsel quietly directed Defendant to stand up so that

the record would properly reflect this identification.

Defendant silently stood up following this direction.

This Court promptly yelled at Defendant to sit down,

using an aggressive tone of voice toward Defendant in

front of the jury. Defense counsel then attempted to

clarify why the Defendant stood up and apologize on

behalf of Defendant, explaining that Defendant was

simply following his direction.

This Court then

interrupted defense counsel mid-sentence, explaining

that it is her duty to control the courtroom.

After discussing a separate evidentiary matter

outside of the presence of the jury, defense counsel

A-36

placed on the record that the Court’s demeanor toward

Defendant in front of the jury was troubling. This

Court then repeated that she controls the courtroom,

and further referenced the previous day when

Defendant was late to jury selection and was wearing

lapel pins which she believed to constituted signals to

the potential jurors.

This Court will recall that after jury selection,

Judge Dempsey ordered Defendant to not be late and

to not wear any lapel pins to trial the next day, and the

Defendant followed those orders, and only stood during

the trial at the direction of defense counsel.

It is uncontested, as defense counsel conceded on

the record, that it is well within a judge’s province to

control the courtroom. The Supreme Court of Florida

held in Braddy that a judge may sternly, perhaps even

angrily, direct a defendant to not interrupt courtroom

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proceedings. Braddy v. State, 111 So. 3d 810, 834 (Fla.

2012).

The Court held that the stern commands

toward the defendant in that case were not legally

sufficient to evidence a bias or prejudice that requires

disqualification. Id. Unlike presently, the proceeding

at issue in Braddy was a pretrial hearing where there

was no jury present and the Supreme Court also noted

“Braddy continually tried to

[Page 3:]

interrupt while either the judge or the State was

speaking, despite the trial judge telling Braddy that he

could talk “[i]n a minute,” and asking him to “[h]ang on

for a second.” Id.

Defendant in the present case did not persist in

any type of similarly disruptive nor exhibit any

disrespectful behavior during the trial.

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One year after Braddy was decided, the court in

Martinez ruled that a judge’s actions in the course of

attempting to control the courtroom can be legally

sufficient

to

require

disqualification

in

some

circumstances. Martinez v. Cramer, 111 So. 3d 206,

207 (Fla. 4th DCA 2013). The court held that the trial

court judge’s behavior “far exceeded comments or

actions necessary to control his courtroom and were

sufficient to evidence to a reasonable person bias

requiring disqualification, even if the judge may have

felt that he had no bias.”

non-jury

guardianship

Id. The judge in that

proceeding

ejected

the

petitioner from the courtroom, struck her testimony,

and made some personal comments about her.

Similarly, the tone of voice used in admonishing

Defendant and defense counsel during the jury trial on

July 3rd far exceeded the comments or actions

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necessary to control the courtroom. The response to

Defendant’s silent, benign act of standing up was

wholly out of proportion. Furthermore, when defense

counsel respectfully readdressed this issue at a later

point, this Court seemingly attempted to justify the

reaction by citing to her admonishments of Defendant

from the day prior.

This served to only add to

Defendant’s well-founded fear of prejudice and bias.

The context of the hearing and history of the case are

relevant to understanding whether a movant has a

well-founded fear of judicial bias. Wall v. State, 238

So. 3d 127, 143 (Fla. 2018).

Defendant’s fear of prejudice and bias also stems

from the extrajudicial and personal knowledge that

this Court possesses about the Defendant. While a

motion to disqualify was not filed previously in this

case on the singular basis of this Court’s personal

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knowledge of Defendant,

[Page 4:]

the conduct toward Defendant paired with this

historical context bolsters Defendant’s fear of judicial

bias if a disqualification is not granted for the

sentencing hearing.

Additionally, pursuant to the

Code of Judicial Conduct, Canon 3(E), “a judge shall

disqualify himself or herself in a proceeding in which

the

judge’s

impartiality

might

reasonably

be

questioned, including but not limited to instances

where . . . the judge has a personal bias or prejudice

concerning a party . . . .”

The comments further

provide that “a judge should disclose on the record

information that the judge believes the parties or their

lawyers might consider relevant to the question of

disqualification, even if the judge believes there is no

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real basis for disqualification.” No such disclosure

occurred.

In conclusion, the combination of the following

creates a well-founded fear of judicial bias from the

perspective of a reasonably prudent defendant: this

Court’s admonishment of Defendant and counsel in the

presence of the jury, the Judge’s seemingly unrelated

reference to her previous admonishments of Defendant,

and the extrajudicial knowledge this Court possesses

regarding the Defendant. The notably angry reaction

to the commonplace act of having a defendant stand up

during an identification stage was beyond what was

necessary to control the courtroom and it merely

evidenced bias and prejudice against Defendant when

considered in the complete context of the trial. The

well-founded fear of bias and prejudice possessed by

Defendant is further amplified by the broad discretion

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that a trial judge is afforded in sentencing hearings.

An order granting disqualification would remove the

appearance of judicial bias from the reasonable

perspective of Defendant.

WHEREFORE, the Defendant moves this

Honorable

Court

to

enter

an

order

granting

disqualification.

RESPECTFULLY SUBMITTED on this 10th day

of July, 2018.

/s/ Don Pumphrey, Jr.

Don Pumphrey, Jr

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IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN AND

FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

CASE NO: 15-CF-972

vs.

SPN: 2732

KEVIN J. KOELEMIJ

Defendant.

MOTION FOR NEW TRIAL

COMES NOW the Defendant, Kevin J. Koelemij,

by and through the undersigned attorney, and

pursuant to Florida Rule of Criminal Procedure

3.600(b) moves this Honorable Court to grant a new

trial in the above-captioned matter, and as grounds

states the following:

1. Jury selection for this matter occurred on July

2, 2018. Jury trial commenced and concluded on July

3, 2018, resulting in a verdict of guilty.

2. The nature of this case resulted in a trial that

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was largely dependent on the jury’s weighing of

witness credibility to ultimately determine the issue of

consent.

3. The State elicited testimony that constituted

both

an

improper

statement

on

Defendant’s

constitutional right to not testify and prohibited

burden shifting.

4. The State made improper comments in closing

that prejudicially injected emotion and fear into the

jury’s deliberation over the objection of defense

counsel.

5. The Court permitted a witness to examine

their previous testimony before defense counsel was

provided an opportunity to impeach the witness.

6. Evidence that was irrelevant, substantially

more prejudicial than probative, and suggestive of

prior bad acts was admitted over the objection of

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defense counsel.

7. The Honorable Judge Dempsey demonstrated

bias and prejudice against Defendant and defense

counsel in the presence of the jury.

[Page 2:]

8. The cumulative effect of these errors resulted

in the substantial rights of Defendant being prejudiced.

DISCUSSION

Florida Rule of Criminal Procedure 3.600(b)

provides that a court shall grant a new trial if any of

the following grounds are established: the prosecuting

attorney was guilty of misconduct (Fla. R. Crim. P.

3.600(b)(5)), the court erred in the decision of any

matter of law arising during the course of the trial

(Fla. R. Crim. P. 3 .600(b)(6)), or for any other cause

not due to the defendant’s own fault, the defendant did

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not receive a fair and impartial trial (Fla. R. Crim. P.

3 .600(b)(8)).

As to the ground of prosecutorial misconduct, the

first instance occurred when the State asked Officer

Caplan if Defendant ever denied that a sex act would

occur on his massage table. The witness answered in

the negative. Any comment which is fairly susceptible

of being interpreted as referring to a defendant’s

failure to testify is error and is strongly discouraged;

the “fairly susceptible” test is a very liberal rule.

Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000). This

inquiry also constituted improper burden shifting by

creating the appearance that one who is criminally

accused has a responsibility to deny or affirm questions

such as the one presented.

The second instance of prosecutorial misconduct

occurred during the State’s closing argument. The

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Assistant State Attorney discussed how she should not

need to tell a massage therapist at the outset of a

massage to not engage in any sex acts during the

massage, then proceeded to list examples of sex acts.

When comments in closing argument inject elements of

emotion and fear into the jury’s deliberations, a

prosecutor has ventured far outside the scope of proper

argument. Carroll v. State, 815 So. 2d 601, 622 (Fla.

2002). This commentary violated what is commonly

referred to as “The Golden Rule” by placing the jurors

in the shoes of the alleged

[Page 3:]

victim and it also improperly communicated to the jury

what may result from a non-guilty verdict. Defense

counsel’s objection to this discussion was overruled,

and as a result no curative instruction was provided.

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Secondly, the Court erred as a matter of law on

the following two occasions. Firstly, while defense

counsel was cross-examining the alleged victim, the

Court ordered that the alleged victim be provided with

copies of his prior testimony. This was without the

predicate foundation for refreshment or impeachment

being established. Ultimately, this resulted in defense

counsel being unable to show the jury any possible

inconsistencies in the alleged victim’s testimony that

may have arisen, leaving the jury unable to weigh his

credibility as a witness and also devoid of his personal

knowledge independent of any memory aids. Defense

counsel’s objections were overruled. The second

occasion of error on the part of the Court occurred

when the recordings of Officer Caplan’s discussion with

Defendant were admitted over the objection of defense

counsel.

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These recordings were irrelevant, substantially more

prejudicial than probative, and in violation of the

prohibition of prior bad acts because the recordings

reference the Defendant’s licensures. The resulting

testimony elicited by the State created an appearance

of prior bad acts by Defendant that were not the

subject of the trial; namely the unlicensed practice of

massage.

Lastly, during the identification phase of the

State’s direct examination of T.S., the alleged victim,

defense counsel quietly directed Defendant to stand up

so that the record would properly reflect this

identification. Defendant silently stood up following

this direction. This Court promptly yelled at Defendant

to sit down, using an aggressive tone of voice toward

Defendant in front of the jury. After discussing a

separate evidentiary matter outside of the presence of

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the jury, defense counsel placed on the record that the

Court’s demeanor toward Defendant in front of the jury

was troubling.

This Court then repeated that the

judge controls the courtroom, and further referenced

[Page 4:]

the previous day when Defendant was late to jury

selection and was wearing lapel pins which she

believed to constituted signals to the potential jurors.

The tone of voice used in admonishing Defendant and

defense counsel during the jury trial on July 3rd far

exceeded the comments or actions necessary to control

the courtroom. Martinez v. Cramer, 111 So. 3d 206,

207 (Fla. 4th DCA 2013). The response to Defendant’s

silent, benign act of standing up was wholly out of

proportion and the fact that it occurred in front of the

jury contributed to Defendant not receiving a fair and

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impartial trial.

In reviewing these errors, a court should not

review them in isolation, but rather examine the

totality of errors and the cumulative effect. See

Anderson v. State, 841 So. 2d 390, 403 (Fla. 2003).

WHEREFORE, the Defendant moves this

Honorable Court to enter an Order GRANTING a new

trial and permitting Defendant to file an amended copy

of this motion with the supporting record.

RESPECTFULLY SUBMITTED on this 13th day

of July, 2018.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing

has been furnished by electronic filing to the Leon

County Clerk of Court; and a true and correct copy has

been furnished via electronic filing to the Office of the

State Attorney at SAO2 leon@leoncountyfl.gov on this

A-52

13th day of July, 2018.

/s/ Don Pumphrey, Jr.

Don Pumphrey, Jr.

Florida Bar No. 0107980

Don@donpumphrey.com

Pumphrey Law Firm

Attorney for Defendant

P.O. Box 1818

Tallahassee, Florida 32302

(850) 681-7777; FAX (850) 681-7518

Eservice to eservice@donpumphrey.com

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