IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFFREY TESTERMAN, Appellant, v. STATE OF FLORIDA, Appellee. Case No.

2D13-1014

ON APPEAL FROM THE CIRCUIT COURT IN AND FOR HILLSBOROUGH COUNTY STATE OF FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI ATTORNEY GENERAL CERESE CRAWFORD TAYLOR Assistant Attorney General Florida Bar No. 0990760 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 (813)287-7900 Fax (813)281-5500 CrimAppTPA@myfloridalegal.com cerese.taylor@myfloridalegal.com Assistant Attorney General

TABLE OF CONTENTS PAGE NO. SUMMARY OF THE ARGUMENT........................................ 8 ARGUMENT....................................................... 9 ISSUE I ................................................... 9 WHETHER THE COURT PROPERLY APPLIED SECTION 942.02, FLORIDA STATUTES?(As stated by Appellee)............................................ 9 ISSUE II ................................................. 13 WHETHER THE TRIALCOURT PROPERLY DETERMINED THAT FLORIDAS REPORTERS PRIVILEGE DID NOT SHIELD APPELLANT FROM TESTIFYING? (As stated by Appellee)........................................ 13 CERTIFICATE OF SERVICE........................................ 21 CERTIFICATE OF FONT COMPLIANCE................................ 21

TABLE OF CITATIONS Cases City of Akron v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003)......................... 19 Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.1985)............................ 17 Delit v. State, 583 So. 2d 1083 (Fla. 4th DCA 1991) ........................... 10 In re April 7, 1999 Grand Jury Proceedings, 749 N.E.2d 325 (Ohio Ct. App. 2000)........................... 19 Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)....... 19 News-Journal Corporation vs. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999)............................ 15 Seo v. Kim, 2002 WL 31445224, 30 Media L. Rep. 1799 (Fla.Cir.Ct. 2002).... 17 Skakel v. State, 738 So. 2d 68 (Fla. 4th DCA 1999) ............................. 10 State v. Davis, 720 So. 2d 220 (Fla. 1998).................................... 15 State v. Famiglietti, 817 So. 2d 901 (Fla. 3d DCA 2002)............................. 14 State v. Roberts, 2005 WL 23358 (Ohio App. 8 Dist. 2005)........................ 12 Ventura v. the Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005) .................................. 19 Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).............. 17 Wilensky v. Gooding, 3

2003 WL 21361276 (Fla. 7th Jud. Cir. Ct. 2003). ............... 15 WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104 (Fla. 3d DCA 2011).............................. 14 Other Authorities Fla. R. App. P. 9.210(a)(2)................................... 19

STATEMENT OF THE CASE AND FACTS Appellee acknowledges the Appellants statement of the case and facts and includes the following additions and/or corrections: He order in this case directs that Appellant honor the

State of Ohios subpoena and appear at the trial of the defendant known as Bobby Thompson. (R. 30). The State of Ohio has

charged Thompson with twenty-four criminal offenses arising from his operation of the United States Navy Veterans Association charity. (the USNVA) (R. 30). At the hearing held pursuant to Rule 942.02, Florida Statutes, Appellants counsel argued that the court must consider and apply Floridas reporters privilege as well as applying the test under section 942.02. (Hrg. Tr., p. 55-58). The court re-

ceived testimony from Assistant Attorney General Brad Tammaro who explained that Testerman was an eyewitness to the crime of identity fraud. (Hrg. Tr., p. 60). Mr. Tammaro stated that: The key factor that must be determined is the identification of the defendant as Bobby Thompson, and as Bobby Thompson he ran . . .the fake charity. Mr. Testerman. . .overheard the defendant identify himself as Bobby Thompson. He then had a discussion with him where he identified him [sic] Mr. 5

Thompson. . . .[Ultimately Thompson entered] the duplex where he was running that association. (Hrg. Tr., p 60-61). Testerman observed Thompson en-

ter the charitys headquarters and saw him wearing a USNVA hat. (Hrg. Tr., p. 62). Assistant Attorney General Tammaro further explained that the RICO and identity theft charges hinge on proof that the defendant was using the Bobby Thompson identity. (Hrg. Tr., p 61). Counsel showed how Testermans evidence was unique and that other witnesses were not available. He related that one cohort,

Blanca Contreras, flat out refused to testify. (Hrg. Tr., p 62). Contreras daughters were claimed memory lapses. (Hrg. No other witness, aside from Appellant, could place the duplex that served as headquarters for the

Tr., p 62). Thompson in

fraudulent charity. (Hrg. Tr., p 62). Following the hearing, the court entered its order requiring Appellant to comply with the subpoena. (R. 30). The court

conducted an analysis pursuant to section 942.02 and concluded that Testermans evidence was both material and necessary to the state of Ohios criminal case against Thompson. (R. 32-33). The

court further found that Testermans one day appearance at the Ohio trial did not present an undue hardship. (R. 33). 6

Finally, the court addressed Appellants reporters privilege argument under section 90.515, Florida Statutes. concluded that Floridas reporters privilege did The court not shield

Testerman from identifying Thompson. (R. 34). plained:

The court ex-

While Testerman is correct in asserting that the Florida Supreme Court has enumerated a qualified reporters privilege, the privilege does not apply to eyewitness observations of physical evidence [] of a crime, even if the event occurred while actively gathering the news. (R. 34). Having concluded that Testermans observations of Cody

misrepresenting himself as Bobby Thompson constitutes eyewitness observations of the crime of identity fraud, the court ruled that there would be no undue hardship because the testimony would not be in regard in to knowledge shielded b the qualified reporters privilege. (R. 34).

SUMMARY OF THE ARGUMENT The trial court properly concluded that Appellant was compelled to comply with an out of state subpoena pursuant to section 942.02, Florida Statutes (2012).

ARGUMENT ISSUE I WHETHER THE COURT PROPERLY APPLIED SECTION 942.02, FLORIDA STATUTES?(As stated by Appellee). The case before this Court involves two distinct legal arguments arising from Appellants objection to his subpoena from an out of State entity; namely, the State of Ohio. The first

issue is a challenge to the trial courts ruling that Testerman must comply with the State of Ohios subpoena. Section 942.02 requires a trial court, once in receipt of a certification from a sister state that a Florida citizen is a material and necessary witness to a criminal case then pending in that sister state, to set a hearing at which the citizen witness will appear. At the hearing, the court will consider

whether the citizen witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution. . . and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, will give to the witness protection from arrest and the service of civil and criminal process. 942.02(2), Fla. State. (2012). Once the

court makes these affirmative findings, the judge shall issue a 9

summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending. 942.02(2), Fla. State. (2012). Without question, the trial court followed this procedure. There was no rubber stamping the Ohio courts subpoena. Delit v. State, 583 So. 2d 1083 (Fla. 4th DCA 1991). Rather, the court

heard argument from the parties and conducted an evidentiary hearing where it received testimony from Brad Tammaro, an Assistant attorney general for the State of Ohio. Thus, the question

before this Court is whether the courts substantive ruling was an abuse of discretion. Skakel v. State, 738 So. 2d 68 (Fla. 4th DCA 1999). The evidence shows that it did not. Appellant challenges the elements of materiality and necessity by positioning Testerman as the victim and then construing Ohios false identity law to challenge whether using a false name with a newspaper reporter is even a crime at all. This

argument, in an attempt to limit the value of Testermans testimony, reads the statute too narrowly. Ohio Criminal Statute RC 2913.49 criminalizes the use of a false identity. The statute provides:

No person, without the express or implied consent of the other person, shall use, obtain, or possess any personal identifying 10

information of another person with intent to do either of the following: (1) Hold the person out to be the other person; (2) Represent the other person's personal identifying information as the person's own personal identifying information. The statutes plain language reflects that target of the crime need not be the witness it. In this case, the defendant

known as Bobby Thompson used his false identity to perpetrate an elaborate charity. multi-state fraud using a phony military veterans

Testerman overheard the criminal defendant identify Testerman observed Thompson enter

himself as Bobby Thompson.

the building identified as headquarters for the fraudulent navy veterans charity. cap bearing the He witnessed Testerman wearing a baseball logo of the fraudulent veterans charity.

Testermans evidence supports the charged offense and forges a connection between the other charged offenses. Further section 2913.49 does not criminalize the conduct based on the victims identity. Thus, giving of a false name,

under Ohio law, is a criminal act without regard for the entity that receives the information. Appellants efforts, then, to

argue the [in]conceivab[ility] that the false identification 11

would be criminalized when made to a reporter, are unavailing. It is the fact of the false representation that Ohio criminalizes. State v. Roberts, 2005 WL 23358 (Ohio App. 8 Dist.

2005)(There is no requirement in the statute that a defendant's use of another's personal information result in a theft.). It is the fact of the false representation that Testerman personally witnessed. In this regard, the court did not abuse its

discretion in concluding that Testermans evidence was both material and necessary. Testermans eyewitness receipt of Thompsons false identification also distinguishes this case from the facts of Delit. Where in that case there was speculative allegations of relevant information, in this case, Testerman witnessed a completed offense under Ohio law. Based on this evidence, the trial court

correctly determined that Testermans evidence was both material and necessary to the State of Ohios prosecution. The court did

not abuse its discretion in ruling that Testerman must comply with the State of Ohios subpoena. An important parenthetical to the States analysis is the fact that the trial court actually considered Appellants reporter privilege argument pursuant to section 90.5015, Florida Statutes. At the subpoena hearing Appellants counsel argued, 12

as counsel does before this Court, that the State of Ohios reporters privilege is different and that the question of privilege, as well as application of the foreign subpoena statute, must be addressed. The State argued that the only question be-

fore the court was materiality, necessity and undue hardship under section 942.02. Having received argument on this point, the court included in its written order an additional analysis under the reporters privilege. Applying the plain language of section 90.5015, the

court found that the privilege did not apply, as Appellants testimony pertained to his eyewitness evidence of a crime. Ac-

cordingly, the court applied Floridas privilege law, as argued for by Appellant, but found factually that it did not apply. This issue does not entitle Appellant to relief. ISSUE II WHETHER THE TRIALCOURT PROPERLY DETERMINED THAT FLORIDAS REPORTERS PRIVILEGE DID NOT SHIELD APPELLANT FROM TESTIFYING? (As stated by Appellee). Appellant continues his assault on the trial courts evidentiary ruling by arguing that he was privileged from disclosing the testimony sought by the State of Ohio. A. Section 90.5015- Floridas journalist privilege.

Section 90.5015 was enacted in 1998 to protect profes13

sional journalists against the disclosure of sources and information obtained while actively gathering news. WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104 (Fla. 3d DCA 2011). This privilege is

qualified and not absolute. Id. at 106 (The statutory journalist's privilege and its common law antecedents are intended to provide a limited degree of protection for a reporter's sources of information.); State v. Famiglietti, 817 So. 2d 901 (Fla. 3d DCA 2002)(noting qualified nature of privilege). It does not provide a complete blanket of protection over all journalistic activity. The privileges qualified nature can be overcome by a showing that: (a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought; (b) The information cannot be obtained from alternative sources; and (c) A compelling interest exists for requiring disclosure of the information. 90.5015(2), Fla. Stat. (2012). The present case is not a case in which a journalist is being compelled to testify regarding information obtained in the process of pursuing newsgathering activities. Jeffrey Testerman 14

is a fact witness to an of identity fraud under Ohio law.

This

fraud is one component in a string of crimes committed by the defendant known as Bobby Thompson and being prosecuted by the State of Ohio. The man identified as Thompson was not a source for a newspaper story he was the story. Thompson was the subject of the

Times investigative reporting into Thompsons criminal activities. During the course of Testermans interaction with and ob-

servation of Thompson, Testerman saw his commit a completed offense of identity fraud. This distinguishes this case from cas-

es where a reporter is privileged not to divulge non-criminal activity observing during the process of newsgathering.

Wilensky v. Gooding, 2003 WL 21361276 (Fla. 7th Jud. Cir. Ct. 2003). The plain language of section 90.5015 exempts from the Ac-

privilege criminal acts actually witnessed by a reporter.

cordingly, the qualified privilege under section 90.5015 does not apply to shield Appellant from testifying. News-Journal Corporation vs. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999) citing State v. Davis, 720 So. 2d 220 (Fla. 1998)(the Legislature decided to exclude from the scope of the privilege . . . physical evidence of a crime, eyewitness observations of a crime, and 15

visual

or

audio

recording

of

crimes.

Qualified

journalist's

privilege does not apply to physical evidence of crimes or eyewitness observations of crimes.). this point was correct. Even if the privilege applied in this case, the burden to overcome the privilege was satisfied. Section 90.5015(2) conThe trial courts ruling on

cerns itself with the relevance and materiality of the information sought from a reporter. The statute also requires the

party seeking the information to show a compelling interest for its disclosure and its unavailability from other resources. In this case, Testerman observed a completed crime which, additionally, related to other charged offenses. Evidence of

elements of a crime is both relevant and material to its prosecution. Such information permits the State to prosecute its

criminal laws, thereby providing a compelling State interest for the informations release. Finally, this instance of the com-

pleted criminal act occurred in a place and time at which only Testerman and Thompson were present. This fact makes his evi-

dence highly material and relevant to the charged offense of identity fraud. The State of Ohio is not equivocal in valuing Testermans evidence. Seo v. Kim, 2002 WL 31445224, 30 Media L. Rep. 1799 16

(Fla. Cir. Ct. 2002) (allegation that [t]he videotaped interview of Plaintiff/Counterdefendant may be useful in proving

Plaintiff's/Counterdefendant's inconsistencies was insufficient to establish a compelling need for reporters testimo-

ny)(emphasis in original).

Testermans position as the sole

witness makes his testimony unique, invaluable and material to the prosecution. The information cannot be obtained from any

source but Testerman. The list of other witnesses to Appellants criminal actions reflects the vastness and intricacies of Thompsons criminal enterprise. While Appellant offers a long list of potential witnesses, he fails to acknowledge several factors which make their testimony inferior to Testermans evidence. First, only

Testerman was present on the day this particular charged offense was committed. Further, many of them may be protected by Con-

stitutional protections equally compelling to that asserted by Testerman; namely the Constitutional protection against selfincrimination and the attorney-client privilege. Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.1985) (citing Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30

(1977))(noting that although the attorney-client privilege is not a constitutional right, [i]n some situations, ... govern17

ment interference with the confidential relationship between a defendant rights.). and his counsel may implicate Sixth Amendment

Accordingly, despite the string of allegedly poten-

tial witnesses Appellant identifies, Testermans information is necessary to support Ohios compelling need to subpoena his testimony at Thompsons trial. The very fact that the majority of the potential witnesses identified by Appellant have bias, credibility and privilege issues makes Testermans evidence all the more compelling. Appel-

lee is not merely arguing that Testermans neutral status makes him a better witness. Rather, the State is arguing that Thomp-

son committed a laundry list of crimes, one of which Testerman personally observed. In additional to this completed crime,

Testermans evidence provides an element or elements of additional offenses. Compelling Testermans evidence of this crime does not transform him into a governmental investigatory arm. Appellants Initial Brief citing State v. Davis, 720. 2d 220 (Fla. 1998), at p. 39. This evidence reflects that the privi-

lege must give way in light of the legitimate and compelling need demonstrated by the Ohio State prosecutors office. B. Difference in Florida and Ohio Reporters Privilege

As previously argued, the trial court in this case applied 18

Floridas privilege law in making its decision.

Thus, any disThe

tinction between Florida and Ohios laws is irrelevant.

trial court applied the plain language of Floridas privilege to the facts of this case and correctly determined that Testerman was being subpoenaed as an eyewitness to a crime, not to divulge his newsgathering information or sources. The trial court hav-

ing lawfully applied Floridas statutes, any differences between that and other statutes should not effect the integrity of the courts ruling. Nevertheless, the State observes that the crux of Ohios reporters shield law seems to share with Floridas law the admonition that reporters are not shielded from testifying regarding criminal acts which they personally observed. City of Akron v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003); see also Ventura v. the Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005); In re April 7, 1999 Grand Jury Proceedings, 749 N.E.2d 325 (Ohio Ct. App. 2000). [T]he public has a right to every man's evidence.

Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)(internal citation omitted). This rule ex-

tends to journalists who are eyewitnesses to a criminal act. When a reporter is a fact witness he does not have the privilege 19

to refuse to testify, because there is no intrusion into the press newsgathering function. State v. Davis, 720 So. 2d at 227. Thus, the trial court issuance of the subpoena compelling Testerman to give evidence in the State of Ohio does not violate Floridas reporters privilege. pellant to relief. This issue does not entitle Ap-

20

CONCLUSION Appellant respectfully requests that this Court affirm the trial courts ruling directing Appellant to comply with the Ohio subpoena. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email to Allison Steele, Esq., Rahdert Steele Reynolds & Driscoll, P.A., amnestee@aol.com of June, 2013. CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL s/ Cerese Crawford Taylor CERESE CRAWFORD TAYLOR Assistant Attorney General Florida Bar No. 0990760 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 (813)287-7900 Fax (813)281-5500 CrimAppTPA@myfloridalegal.com cerese.taylor@myfloridalegal.com 21 this 5th day