AMENDED MOTION FOR NEW TRIAL

IN THE CIRCUIT COURT OF THE SEVENTH  JUDICIAL CIRCUIT

IN AND FOR XXX COUNTY, XXX

 

 

 

 AMENDED MOTION FOR NEW TRIAL

COMES NOW, Defendant XXX, pro se; and pursuant to Rules 3.580, 3.590, and 3.600, Florida Rules of Criminal Procedure, respectfully requests that this Honorable Court grant a new trial in the above-styled cause. As grounds for this Motion, Defendant states as follows:

PRELIMINARY STATEMENT

  1. In this motion, the Defendant, Brooks Mitchell, will be referred to as “Defendant”. The Plaintiff, the State of Florida, will be referred to as the “State”.
  2. Defendant files this Motion to ask for New Trial on the ground that substantial rights of the Defendant were prejudiced when the key witness in the case deleted substantial evidence, which was crucial to the case. For that reason, the said evidence was never used in the case.

 

STATEMENT OF JURISDICTION

  1. Jurisdiction is proper since this Court gave the Judgment convicting Defendant and gave Defendant a sentence accordingly.

STATEMENT OF RELEVANT FACTS

  1. Defendant was convicted and sentenced by this Court on or about XXX.
  2. In the pendency of the trial, Detective Kelly Vought, from the Jacksonville Sheriff’s Office (JSO) (hereinafter “Det. Vought”) was the key witness and chatter in this case. Det. Vought, in a deposition, admitted to deleting the original evidence of an Internet Crimes Against Children (ICAC) Gmail account, (See Vought deposition page 34 line 22-23) which was the only way to authenticate what was sent in the email exchange, if anything. Further, Det. Vought was off duty at 11PM on XXX during the chat/text exchange as shown on his timecard (Exhibit A) and has since lost his cell phone. No screen shots of the email thread or text were ever offered into evidence. Therefore, the communication could not be authenticated.
  3. Defendant’s former attorney also failed to point out to the jury that the original email evidence from the said key witness was deleted and lost. The Court therefore lacked an opportunity to consider this fact.

Particulars of the facts that were not presented to the jury

  1. Vought was not in the Sting House in Daytona when setting up his Gmail account, Facebook Page, and Craigs List advertisement from his ICAC computer. The IP address he used was in Jacksonville. (Exhibit B) He was unsupervised and did not use the secure ICAC internet and servers at the Sting House as required by the ICAC Standards for all communication during the operation. Detective Vought admitted during testimony and under oath to using his own personal HOTSPOT internet connection during his online text and chatting during the operation. The ICAC servers at the Sting House had no history of any communication chat or text from Det. Vought’s computer that week. There was therefore no way to authenticate any of Det. Vought’s text/chat evidence. The Craigs List server report (Exhibit B) shows the advertisement was modified or edited just after the arrest was made. It then shows 19 emails were shared and not 20 as the Detective swore to under oath at the trial. (Exhibit C, C1, C2) The email threads from the State and from the defendant did not match up. The extra email in question was not sent by the defendants account or was it received by the States account according to the Craigslist server report. The extra email consists of a graphic photo that was used by the States probable cause claim. The email evidence was never authenticated by an expert. The defense never told the jury this fact.
  2. Vought disobeyed the judge’s order to not use or turn on the ICAC laptop before turning it over to the defense for inspection. (Exhibit D, D1, D2, D3) The defense never told the jury this fact.
  3. Vought deleted the entire G-Mail account, Facebook account, Craigslist account (Exhibit D4, D5) and many ICAC files and photos including several with the name Brooks Mitchell and date of 3/13/2015 (day of arrest) from the ICAC laptop just before he turned it over to the defense. (Exhibit D, D1, D2, D3) The defense never told the jury this fact.
  4. Vought deleted the internet history and the recycle bin from the ICAC laptop after being told not to by the judge. (Exhibit D, D1, D2, D3) The defense never told the jury this fact.
  5. Vought removed all the login and passwords from the ICAC laptop after being told not to by the judge. (Exhibit D, D1, D2, D3) The defense never told the jury this fact.
  6. Vought was unable to provide the ICAC cell phone and text after the judge ordered it to be turned over to the defense. (Exhibit D, D1, D2, D3) The defense never told the jury this fact.
  7. Vought lied under oath about his on-duty status at 11:00PM on 03/12/2015 during text/chat, per his deposition and timecard. (See Vought deposition page 10 lines 15-25, page 11 lines 1-4 and Exhibit A) The defense never told the jury this fact.
  8. Vought did not attend the ICAC mandatory training on 3/9/2015 in Daytona as he stated in his deposition. (See Vought deposition page 16 lines 21-25 and page 20 lines 10-13) The defense never told the jury this fact.
  9. Vought did not receive or read the mandatory ICAC North Florida Operation of Standards Manual as per his deposition. In fact, he had not even seen it until 3 years later at his deposition in this manner. (See Vought deposition page 10 lines 6-9) The defense never told the jury this fact.
  10. Vought did not know who invited him to work on this operation, per his deposition. (See Vought deposition page 12 lines 7-11) The defense never told the jury this fact.
  11. Vought did not know who his ICAC Case Agent Team Leader was, per his deposition. (See Vought deposition page 12 lines 12-17) The defense never told the jury this fact.
  12. Detective Lily Efird, of the Volusia County Sheriff’s Office (VCSO), Det. Vought’s Case Agent Team Leader did not know Det. Kelly Vought, per Det. Efird’s deposition and sworn testimony. (See Efird deposition page 7 lines 10-13) The defense never told the jury this fact.
  13. Lily Efird was not trained or part of the ICAC Task Force, however she was appointed as the ICAC Case Agent Team Leader in this operation, per her deposition. (See Efird deposition Page 6 line 24, page 9 lines 14-20 and page 12 lines 4-5) & (Exhibit E) The defense never told the jury this fact.
  14. Vought did not submit a written police report or author any other reports in this case, per his deposition. (See Vought deposition page 13 lines 7-9)
  15. Vought turned over highly sensitive and confidential information of the entire Mitchell case file to the United States Coast Guard (USCG) without ICAC or JSO permission, per his deposition. (See Vought deposition page 30 lines 19-25). The USCG was not involved in this operation in any way. They had no authority to view Mitchell’s file. As a result of Det. Vought’s actions, the USCG revoked the Defendant’s Mariners License. USCG further published information on Defendant’s conviction on the internet even before this trial started. The defense never told the jury this fact.
  16. Vought was not listed to work on any personnel assignments for this Sting Operation, per the signed Order of Operation. (Exhibit E) The list also shows no personnel from JSO were named on the list as well. Personnel assignments were specific to the order. The defense never told the jury this fact.
  17. The Sting Operation Manual states that the address of the Sting House was not to be given out until the entire chat/text communication was given to the ICAC Case Agent Team Leader for review. (Exhibit F). The defense never told the jury this fact.
  18. Vought did not provide the entire chat/text to the ICAC Team Leader as required by the Operation Manual. Det. Vought stated he did NOT give out the entire chat/text to the ICAC Team Leader, per his deposition. (See Vought deposition page 25 lines 11-21) The defense never told the jury this fact.
  19. The ICAC Case Agent Team Leader, Lily Efird was never given any text or chat from Det. Vought as she stated in her deposition. The entire text/chat communication was not included in any report from Det. Vought or Det. Efird the night of the arrest. (See Efird deposition page 12 lines 17-25 and page 13 lines 1-9) (Exhibit F1) The defense never told the jury this fact.
  20. The Chain of Custody (COC) for the defendant’s cell phone was broken by Det. Joe Riley, who was the head forensic expert at VCSO. Det. Riley was never listed on the COC form. (Exhibit G, G1, G2, G3 & Riley’s deposition Page 8 lines 22-25 & page 9 lines 1-25). The defense never told the jury this fact.
  21. There was No “Affiliate Agreement” for this operation between VCSO and JSO including any agreement for Det. Kelly Vought to work in this operation the week of 3/9/2015- 3/16/2015. (Exhibit H, H1, H2, H3, H4) The defense never told the jury this fact.
  22. It was never mentioned by the defense to the jury about the discrepancy between the emails entered from the State and the emails from the Craigs List Server that was deposed by the defense. The emails admitted from the State were called a fraud by the defenses’ forensic expert Rick Green under sworn testimony. There is no way to authenticate the text since the ICAC cell phone has gone missing and there is no way to authenticate the email threads since Det. Vought deleted all the emails and the entire Gmail account. By his own words. “That account is — it’s no longer in existence.” (See Vought deposition page 34 lines 11-23)

 

  1. Vought was OFF DUTY, in a different jurisdiction and unsupervised during this operation. The ICAC Operational Standards does not allow OFF-DUTY personnel to conduct ICAC Investigations. (Exhibit H5 4.3.4 (a)) None of the evidence provided by Det. Vought can be authenticated. Det. Vought has deleted and lost key evidence in this case. The G-mail, Facebook and Craigslist account used by Det. Vought are gone for good! The cell phone used in this operation is missing. The defense never told the jury this fact.

 

LEGAL ARGUMENTS

There was insufficient evidence to hold the Defendant guilty

A new trial may be granted if “[t]he verdict is contrary to law or the weight of the evidence.” Thomas v. State, 574 So.2d 160 (Fla. 4th DCA 1990). In Thomas, the court indicated that the provision in the rule that a new trial may be granted if the “verdict is contrary to law” means that the insufficiency of the evidence is a proper basis for that relief. See State v. Andrews, 820 So.2d 1016, 1021 (Fla. 4th DCA 2002) (“`In reviewing a motion for a new trial, the trial court must consider both the weight and sufficiency of the evidence.”) (Quoting State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994)); State v. May, 703 So.2d 1097, 1098 (Fla. 2d DCA1997) (“A new trial motion is made pursuant to rule 3.600 and may be based on two grounds: (i) the legal sufficiency of the evidence or (ii) the weight of the evidence. Fla. R. Crim. P. 3.600(a)(2).”); Thomas v. State, 574 So.2d 160, 160 (Fla. 4th DCA 1990).

“Sufficiency of evidence” is a test of whether the evidence presented is legally adequate to justify the verdict. See State v. Andrews, 820 So.2d 1016, 1021 (Fla. 4th DCA 2002).

 

In the instant action, Defendant avers that the insufficiency of evidence was created by the fact that Detective Vought deleted pertinent evidence contained in the Internet Crimes Against Children (ICAC) Gmail account, which was the only way to authenticate that there was an email exchange. Further, Det. Vought was off duty as shown on his timecard and has since lost his cell phone. Therefore, the communication could not be authenticated. Further, Defendant’s former attorney failed to point out that Det. Vought had deleted the said account, and instead, chose a different strategy. It follows; insufficient evidence was presented before the Court in that regard.

 

 

  • A State’s witness committed perjury

“[t]he key to a valid oath is that perjury will lie for its falsity. Such an oath must be an unequivocal act in the presence of an officer authorized to administer oaths by which the declarant knowingly attests the truth of a statement and assumes the obligations of an oath. It is essential to the offense of perjury that the statement considered perjurious was given under an oath actually administered.” XXX.

Defendant contends that one of the State’s witness lied under oath. The witness, a police officer (Det. Kelly Vought) swore in his deposition he was on duty during the online text and chatting on or about 11:00pm on XXX.  (Attached as “Exhibit E”) In Defendant’s further investigation, Defendant found the police officer’s timecard (Attached as “Exhibit F”) that shows he punched the time clock for off duty at 9:30pm on XXX a full 90 minutes before the chat/texting began. The Jacksonville Sherriff’s Office (JSO) records department has NO records of the Detective clocking back in that evening for regular or overtime hours, nor did they find any request or acceptance (as required by JSO) for additional hours to be worked that night. (Attached as “Exhibit F1”) In addition, Detective Vought was not listed on the Personnel Assignments to work at all on the Sting Operation that week. (Attached as “Exhibit F2”) Not only was the police officer off duty, but he was also reportedly out of his own jurisdiction and in a different county by his own deposition. This amounted to a violation of the (Internet Crimes Against Children) ICAC Task Force rules, which require that an investigation officer must be on duty while conducting the investigation. (Attached as “Exhibit G”) It is worth noting that the said standards and/or rules are binding, and the police are subject to it. The investigations should be set aside for this reason.

In that regard, Defendant avers that the State’s evidence be set aside because it was perjured. Also, the said evidence was obtained in violation of the law since it was done by an investigator who was off duty, in contravention of the ICAC Task Force rules, See Exhibit G, page (8) 4.3.4 (a).

The State used a faulty and/or illegal search warrant.

“A search warrant cannot be issued except upon probable cause supported by affidavit or affidavits… no search warrant shall be issued in blank.” (Emphasis added). Fla. Stat. § 933.05. Further, “[t]he judge must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application.” Fla. Stat. § 933.06. Further, the law requires the Judge to only issue the search warrant when the judge is satisfied that probable cause exists. Fla. Stat. § 933.07(1) states in that regard that: “[t]he judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of the search warrant, shall thereupon issue a search warrant s…”

In the instant case, the officers obtained Defendant’s information first before seeking a search warrant from the court. See Exhibit B. Besides, they used the illegally obtained information to fill in the details for the search warrant. They did not notify the Court that they had done a warrantless search on Defendant before applying for the search warrant. They did not also prove that there was probable cause to justify the illegal search.

Any evidence obtained in connection with an illegal search must be suppressed as “‘fruit of the poisonous tree.'” United States v. Brown, 448 F.3d 239, 244 (3d Cir.2006) (quoting Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)). Accordingly, Defendant prays this Court vacates the previous judgment on this ground.

The charges against Defendant should be dismissed for bad faith.

The District Court of Appeal in Florida held that bad faith destruction of evidence requires dismissal of the charges, and that willful, intentional destruction of evidence requires sanctions. XXX. State, 576 So. 2d 316 (Fla. Dist. Ct. App. 1990).

In the instant action, Detective Vought deliberately deleted pertinent evidence contained in the Internet Crimes Against Children (ICAC) Gmail account, which was the only way to authenticate that there was an email exchange. As a result of Det. Vought’s actions in bad faith, the communication could not be authenticated. Further, Defendant’s former attorney failed to point out that Det. Vought had deleted the said account, and instead, chose a different strategy. It follows; therefore, the charges against Defendant should be dropped for bad faith deletion of evidence pursuant to XXX. State, 576 So. 2d 316 (Fla. Dist. Ct. App. 1990).

 

CONCLUSION

There is prejudicial error in that the Defendant’s substantial rights were denied because pertinent evidence in the case was not presented to the jury. As alleged hereinabove, the evidence that was deleted by Det. Vought would have gone a long way in influencing the verdict of the Court.

The Defendant requests this Court to disregard any of his pending motions at this time. This current motion reflects an accurate representation of the Defendant’s case and prayers.

            WHEREFORE, the Defendant respectfully requests this Court to enter an order:

  1. Reverse and/or vacate the conviction of Defendant.
  2. Grant a New Trial for the case.
  3. Appointing counsel for Defendant.
  4. Clearing Defendant’s name from any criminal database.
  5. Expressly permitting the defendant to reserve the right to amend this Motion; and
  6. Awarding any such other and further relief as this Court deems just and proper.

Respectfully submitted this _______________ day of ______________, XXX

 

 

 

 

 

 

 

 

 

 

OATH

 

Under penalties of perjury, I Brooks Mitchell declare that I have read the foregoing motion and that the facts stated in it are true and correct. I do certify that I understand the English language and can read and write in English. I have read this motion and I do understand this motion. I shall use the email system for communication all correspondences regarding the instant case. I do certify I presented copies to the clerk of court. I respectfully ask the clerk to make copies and to deliver to ALL concerned parties.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certifies that the foregoing Motion for a New Trial has been served upon the State of Florida by mail, email/e-filing or personal delivery a copy of the same to the office of the prosecutor XXX  in the XXX County Courthouse and Judge Leah Case at the same Courthouse.

 

XXX

 

XXXX

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