MOTION FOR POST-CONVICTION RELIEF

February 5, 2023

IN THE CIRCUIT COURT OF THE SEVENTH  JUDICIAL CIRCUIT 

IN AND FOR VOLUSIA COUNTY, FLORIDA

 

MOTION FOR POST-CONVICTION RELIEF

COMES NOW, Defendant Brooks Mitchell, pro se; and Rule 3.850 of the Florida Rules of Criminal  Procedure, and respectfully moves this Court to vacate and set aside the verdict and sentence in this Case  No. 22015301300 CFDB. As grounds for this motion, the Defendant states that he has discovered exculpatory evidence, which  was withheld by the State. In support thereof, Defendant states the following:

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. The instant motion refers to this Court’s Order striking Defendant’s Petition for Motion to ask for New Trial for Reasons of Ineffective Assistance of Counsel and Order Denying Defendant’s Motion for the Appointment of Counsel. (“The Order”). (Attached as “Exhibit A”).

STATEMENT OF JURISDICTION

  1. Jurisdiction is proper since this Court gave the Judgment convicting Defendant and gave Defendant a sentence accordingly. Besides, this Court issued the Order, on or about July 1, 2021. 

 

STATEMENT OF RELEVANT FACTS

  1.  Defendant was convicted and sentenced by this Court on or about 01/28/2020.
  2. Following the sentencing, Defendant filed Defendant’s Petition for Motion to ask for New Trial for Reasons of Ineffective Assistance of Counsel. Defendant raised grounds inter alia, that Defendant’s counsel did not present all the evidence in the trial.   
  3. Defendant also filed a Motion for the Appointment of Counsel in that regard.
  4. The Court gave a ruling in the said Order. In the Order, the Court stroke Defendant’s Motion(s) with leave to amend within sixty days of the date of the Order. The court held, inter alia, that there was lack of sufficient facts to grant Defendant’s Motion(s). The Court also held that Defendant failed to show how the omitted evidence was exculpatory. 
  5. The said sixty days after the issuance of the Order having so expired, Defendant seeks to file this Motion for Post-Conviction relief on the ground that Defendant has obtained new evidence of that was not presented before the Court, which shows how the prosecution violated Defendant’s rights. 

The new Evidence

  1. Notably, the evidence consists of emails between Erica B. Kane, the Assistant State Attorney, Kevin Sullivan, the prosecution, and the police. (Attached as “Exhibit B”).
  2. The emails show how the prosecution conspired to conduct a search Defendant’s cellphone data without a valid search warrant/ before obtaining a search warrant. In fact, the emails show how the said individuals suggest and agree to have the search warrant signed after they illegally obtained the data. 
  3. It follows; evidence obtained in such manner violates Defendant’s constitutionally protected rights.

LEGAL ARGUMENTS

  1. The Search on Defendant’s cellphone data was unlawful

The Supreme Court of Florida Court has articulated the following two requirements that must be satisfied in order to set aside a conviction or sentence on the basis of newly discovered evidence: First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known [of it] by the use of diligence.” Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (internal citations omitted). 

In the instant action, the Defendant satisfies the first prong. The facts on which this motion is predicated were unknown to the Defendant or the Defendant’s attorney at the time of the trial.

The Jones court has also explained the proper analytical framework for a court to employ in determining whether the second prong of the standard has been satisfied in post-conviction proceedings: To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.”

              This requires that the trial initially consider:

whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. Jones, 709 So.2d at 521-22 (citations omitted).

 

The said evidence shows how the State violated Defendant’s 4th and 14th Amendment rights. The 4th Amendment to the Constitution and Article 1, Section 12 of the Florida Constitution guarantees the right to be free from “unreasonable searches and seizures”. The Defendant had a reasonable expectation of privacy to his phone data. Besides, the prosecution lacked probable cause to conduct the warrantless search.  In Brinegar v. United States 338 U.S. 160 (1949), the U.S. Supreme Court held that “probable cause” exists where “the facts and circumstances within the officer’s knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed”.

Where a search is made by an officer without a warrant, “the State must be prepared to show, not only the factual existence at such time of probable cause, but also that the officer or officers had no reasonable opportunity to previously apply for and be issued an arrest or search warrant; otherwise, the evidence as to the fruits of the search goes out.” Falcon v. State, 226 So. 2d 399. 

The Fourteenth Amendment prohibits a state from depriving a citizen of his rights without affording him due process of law. U.S. CONST. amd. XIV, § 1. Section 9, Art. I, of the Florida State Constitution contains a similar provision. The fundamental principle of procedural due process of law is the right of persons deprived of property to prior notice and hearing. MacQueen v. Lambert, 348 F. Supp. 1334 (M.D.Fla. 1972).

The evidence presented by Defendant leaves no doubt that the State searched Defendant’s cell phone data without a search warrant. Notably, Defendant’s forensic expert testified he found an anomaly in Defendant’s cell phone showing someone had accessed the phone prior to the search warrant. (Attached as “Exhibit C” and “Exhibit D”). 

Defendant contends that nothing prevented the prosecution from obtaining a search warrant before searching Defendant’s phone data. Besides, the State did not show to the Court any exigent circumstance that warranted the warrantless search. Most notably, the State failed to inform the court how it obtained the evidence. 

Also, Defendant further contends that the State violated Defendant’s due process rights by failing to give Defendant notice of the warrantless search. Also, the State proceeded to prosecute the case without informing the court how they obtained the evidence. 

  1. 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.” Collins v. State, 465 So.2d 1266 (Fla. 2d DCA 1985), citing Markey v. State, 37 So. 53 (Fla. 1904), and Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968).

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 3/12/2015. (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 3/12/2015, 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).  

  1. Defendant is entitled to legal representation.

Pursuant to Fla. R. Crim. P. 3.850(e)7, Defendant is entitled to a court-appointed counsel in the hearing of this Motion. The said provision states in this regard that:

The factors to be considered by the court in making this determination include: the adversary nature of the proceeding, the complexity of the proceeding, the complexity of the claims presented, the defendant’s apparent level of intelligence and education, the need for an evidentiary hearing, and the need for substantial legal research.

 

Defendant contends that this case is complex since this motion raises a claim for a violation of Defendant’s constitutional rights.  Besides, Defendant is not learned in the law, and therefore cannot fully appreciate the legal issues raised in his case, without effective legal representation. Client can also not afford an attorney. Therefore, it is incumbent for Defendant to have legal representation to help protect Defendant’s rights from infringement by the State. 

 

  1. The State committed a Brady Violation.

In Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court summarized the “essential components of a Brady violation” as follows: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued”. Id. at 281-282. 

In  Brady v. Maryland, 373 U.S. 87, 83 S.Ct. 1194 (1963), the court held “that the suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Evidence is material when “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). 

Accordingly, “the prosecution must disclose exculpatory material ‘at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure.’” Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (quoting United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976)).

In the instant action, the State omitted evidence on how they obtained the cell phone data. First, this evidence is in the favor of the Defendant since it shows how Defendant’s rights have been violated by the illegal search done on Defendant’s phone data. Besides, the evidence is material and central to a determination of defendant’s innocence. There is reasonable expectation that had the evidence been disclosed, Defendant’s charge would have been dropped because the State violated Defendant’s rights by the illegal search. 

  • 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 s 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. 

CONCLUSION

The new evidence clearly shows the violation of the Defendant’s rights guaranteed by the Fourth and the Fourteenth Amendments to the United States Constitution, Article I, Section 12, and Section 9 of the Florida Constitution (1968). Any evidence obtained as a result of Defendant’s unlawful, warrantless search must be suppressed under the “Fruit of the Poisonous Tree” doctrine, Wong Sun v. United States, 371 U.S. 471 (1963). 

Also, Defendant is entitled to court appointed counsel pursuant to Fla. R. Crim. P. 3.850(e)7. 

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

  1. Vacating, setting aside or correcting the sentence delivered in this matter;
  2. Quashing the judgment delivered in this matter;
  3. Appointing counsel for Defendant;
  4. Scheduling an evidentiary hearing to determine the merits of this Motion for Post-Conviction Relief;
  5. Clearing Defendant’s name from any criminal database;
  6. Expressly permitting the defendant to reserve the right to amend this Motion; and
  7. Awarding any such other and further relief as this Court deems just and proper.

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. 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.    

 


Respectfully submitted this _______________ day of ______________, 2021.

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certifies that the foregoing Motion for Post-Conviction Relief 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 Assistant State Attorney Erica B. Kane in the Volusia County Courthouse, and the prosecutor Kevin Sullivan. 

 

 7th Judicial Circuit Courthouse 

Daytona Beach Justice Center

251 North Ridgewood Avenue

Daytona Beach, FL 32114

 

Kevin Sullivan

Daytona Beach Justice Center

251 North Ridgewood Avenue

Daytona Beach, FL 32114

 

Erica B. Kane

Daytona Beach Justice Center

251 North Ridgewood Avenue

Daytona Beach, FL 32114

 

Respectfully submitted this _______________ day of ______________, 2021.

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