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IN THE DISTRICT COURT OF APPEAL OF FLORIDASECOND DISTRICT
JEFFREY TESTERMAN,
Appellant,
v. Case No. 2D13-1014
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURTIN AND FOR HILLSBOROUGH COUNTY
STATE OF FLORIDA
ANSWER BRIEF OF APPELLEE
PAMELA JO BONDIATTORNEY GENERAL
CERESE CRAWFORD TAYLORAssistant Attorney GeneralFlorida Bar No. 0990760Concourse Center 4
3507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)[email protected]
Assistant Attorney General
mailto:[email protected]:[email protected] -
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TABLE OF CONTENTS
PAGE NO.
SUMMARY OF THE ARGUMENT........................................ 8ARGUMENT....................................................... 9
ISSUEI ................................................... 9
WHETHER THE COURT PROPERLY APPLIED SECTION
942.02, FLORIDA STATUTES?(As stated by
Appellee)............................................ 9
ISSUEII ................................................. 13
WHETHER THE TRIALCOURT PROPERLY DETERMINED
THAT FLORIDAS REPORTERS PRIVILEGE DID NOT
SHIELD APPELLANT FROM TESTIFYING? (As stated
by Appellee)........................................ 13
CERTIFICATE OF SERVICE........................................ 21CERTIFICATE OF FONT COMPLIANCE................................ 21
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TABLE OF CITATIONS
CasesCity 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,
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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 AuthoritiesFla. R. App. P. 9.210(a)(2)................................... 19
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STATEMENT OF THE CASE AND FACTS
Appellee acknowledges the Appellants statement of the case
and facts and includes the following additions and/or correc-
tions:
He order in this case directs that Appellant honor the
State of Ohios subpoena and appear at the trial of the defend-
ant 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 Associa-
tion charity. (the USNVA) (R. 30).
At the hearing held pursuant to Rule 942.02, Florida Stat-
utes, 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.
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Thompson. . . .[Ultimately Thompson entered]
the duplex where he was running that associ-
ation.
(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 de-
fendant was using the Bobby Thompson identity. (Hrg. Tr., p 61).
Counsel showed how Testermans evidence was unique and that oth-
er 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.
Tr., p 62). No other witness, aside from Appellant, could place
Thompson in the duplex that served as headquarters for the
fraudulent charity. (Hrg. Tr., p 62).
Following the hearing, the court entered its order requir-
ing 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).
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Finally, the court addressed Appellants reporters privi-
lege argument under section 90.515, Florida Statutes. The court
concluded that Floridas reporters privilege did not shield
Testerman from identifying Thompson. (R. 34). The court ex-
plained:
While Testerman is correct in asserting that
the Florida Supreme Court has enumerated a
qualified reporters privilege, the privi-
lege does not apply to eyewitness observa-
tions 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).
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SUMMARY OF THE ARGUMENT
The trial court properly concluded that Appellant was com-
pelled to comply with an out of state subpoena pursuant to sec-
tion 942.02, Florida Statutes (2012).
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ARGUMENT
ISSUE I
WHETHER THE COURT PROPERLY APPLIED SECTION942.02, FLORIDA STATUTES?(As stated by Ap-
pellee).
The case before this Court involves two distinct legal ar-
guments 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 wit-
ness 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 in-
vestigation 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
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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 Assis-
tant 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 neces-
sity 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 testi-
mony, 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, ob-
tain, or possess any personal identifying
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information of another person with intent to
do either of the following:
(1) Hold the person out to be the other per-
son;
(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 multi-state fraud using a phony military veterans
charity. Testerman overheard the criminal defendant identify
himself as Bobby Thompson. Testerman observed Thompson enter
the building identified as headquarters for the fraudulent navy
veterans charity. He witnessed Testerman wearing a baseball
cap bearing the 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
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would be criminalized when made to a reporter, are unavailing.
It is the fact of the false representation that Ohio criminaliz-
es. 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 per-
sonally witnessed. In this regard, the court did not abuse its
discretion in concluding that Testermans evidence was both ma-
terial and necessary.
Testermans eyewitness receipt of Thompsons false identi-
fication 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 of-
fense 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 re-
porter privilege argument pursuant to section 90.5015, Florida
Statutes. At the subpoena hearing Appellants counsel argued,
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as counsel does before this Court, that the State of Ohios re-
porters privilege is different and that the question of privi-
lege, 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 un-
der 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 DETERMINEDTHAT FLORIDAS REPORTERS PRIVILEGE DID NOT
SHIELD APPELLANT FROM TESTIFYING? (As statedby Appellee).
Appellant continues his assault on the trial courts evi-
dentiary ruling by arguing that he was privileged from disclos-
ing the testimony sought by the State of Ohio.
A. Section 90.5015- Floridas journalist privilege.Section 90.5015 was enacted in 1998 to protect profes-
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sional journalists against the disclosure of sources and infor-
mation 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 journal-
ist'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 show-
ing 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 requir-
ing disclosure of the information.
90.5015(2), Fla. Stat. (2012).
The present case is not a case in which a journalist is be-
ing compelled to testify regarding information obtained in the
process of pursuing newsgathering activities. Jeffrey Testerman
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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 news-
paper story he was the story. Thompson was the subject of the
Times investigative reporting into Thompsons criminal activi-
ties. During the course of Testermans interaction with and ob-
servation of Thompson, Testerman saw his commit a completed of-
fense 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
privilege criminal acts actually witnessed by a reporter. Ac-
cordingly, the qualified privilege under section 90.5015 does
not apply to shield Appellant from testifying. News-Journal Cor-
poration vs. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999) citing
State v. Davis, 720 So. 2d 220 (Fla. 1998)(the Legislature de-
cided to exclude from the scope of the privilege . . . physical
evidence of a crime, eyewitness observations of a crime, and
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visual or audio recording of crimes. Qualified journalist's
privilege does not apply to physical evidence of crimes or eye-
witness observations of crimes.). The trial courts ruling on
this point was correct.
Even if the privilege applied in this case, the burden to
overcome the privilege was satisfied. Section 90.5015(2) con-
cerns itself with the relevance and materiality of the infor-
mation 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 prose-
cution. 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
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(Fla. Cir. Ct. 2002) (allegation that [t]he videotaped inter-
view 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 en-
terprise. While Appellant offers a long list of potential wit-
nesses, 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 self-
incrimination 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, ... govern-
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ment interference with the confidential relationship between a
defendant and his counsel may implicate Sixth Amendment
rights.). Accordingly, despite the string of allegedly poten-
tial witnesses Appellant identifies, Testermans information is
necessary to support Ohios compelling need to subpoena his tes-
timony at Thompsons trial.
The very fact that the majority of the potential witnesses
identified by Appellant have bias, credibility and privilege is-
sues 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 addi-
tional 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
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Floridas privilege law in making its decision. Thus, any dis-
tinction between Florida and Ohios laws is irrelevant. The
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 ad-
monition that reporters are not shielded from testifying regard-
ing criminal acts which they personally observed. City of Akron
v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003); see also Ven-
tura 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
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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. This issue does not entitle Ap-
pellant to relief.
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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., [email protected] this 5th day
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 BONDIATTORNEY GENERAL
s/ Cerese Crawford Taylor
CERESE CRAWFORD TAYLORAssistant Attorney GeneralFlorida Bar No. 0990760Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013
(813)287-7900Fax (813)[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]