in the interest of: d.v.~ appellant, a juvenile · d said child is committed to the department of...

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

IN THE INTEREST OF: D.V.~

Appellant, A Juvenile

-Versus-

THE STATE OF FLORIDA Appellee.

APPELLATm CASE NUMBER 3D16-159~ RECORD ON APPEAL IN CASE NUMBER 16-392 J014 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN-AND FOR DADE COUNTY, JUVENILE-FAMILY DIVISION

THE HONORABLE JUDGE ORLANDO PRESCOTT, JUVENILE-FAMILY DIVISION OF THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY

ASSISTANT PUBLIC DEFENDER HON. PAM BONDI ATTORNEY GENERAL ATTORNEYS -FOR APPELLEE 444 BRICKELL-AVENUE SUITE 650 MIAMI, FL 33131

DATE OF FILING

FEBRUARY 13, 2016

FEBRUARY 16, 2011

FEBRUARY 13, 2016

FEBRUARY 17, 2016

MARCH 08, 2016

MARCH 08, 2016

MAY 10, 2016

MAY 24, 2016

MAY 24,. 2016

MAY 24, 2016

MAY 24, 2016

MAY 27, 2016

JUNE 01, 2016

INDEX TO ORIGINAL INSTRUMENT

KIND OF INSTRUMENT

CASE HISTORY -SHEETS

PETITION FOR DELINQUENCY

CUSTODY STATUS/HOME DETENTION ORDER

ACKNOWLEDGMENT OF APPOINTMENT AND NOTICE OF DISCOVERY-

ADJUDICATORY ORDER TRIAL

EXHIBIT LIST

ORDER

ORDER OF INSOLVENCY AND

APPOINTMENT OF COUNSEL

PROBATION ORDER

FINAL JUDGMENT ASSESSING ATTORNEY FEES AND COSTS

MEM0RANDUM OF COSTS

NOTICE OF APPEAL

DESIGNATION TO COURT REPORTER

PAGES

1-2

3

4

5-6

7

8

9

10

11

12-13

14

15

16-17

DATE OF FILING

JULY 25, 2013

JULY _25, 2013

JULY 25, 2016

JUY 25, 2016

INDEX TO HEARING TRANSCRIPTS KIND OF INSTRUMENT

TRANSCRIPT OF PROCEEDINGS (MARCH- 0~, 2016)

TRANSCRIPT OF PROCEEDINGS (APRIL 14, 2016)

TRANSCRIPT OF PROCEEDINGS (MAY 05, 2016)

TRANSCRIPT OF PROCEEDINGS (MAY 24, 2016)

CERTIFICATE OF THE COURTS

PAGES

1-95

1-101;

1-108

1-116

VICKERS

IN THE CIRCUIT OF THE ELEVEN.UDICIAL CIRCUIT IN AND FOR MIAMl ... E COUNTY, FLORIDA

JUVENILE DIVISION

fo1'-/

CASE HISTORY

. f.:

CASE NUMBER

J,~ -39:& CLOCK IN

IN THE INTEREST OF: A 0c,t<~~5; JJe.vo/\I 11- 2/-:Zooo

DATE TYPE OF HEARING Detention

~-n-1~

J

APR 1 2016 ~-

ACTION Public Defender provisionally appointed; Court finds probable cause:

~ Yes - fe f o ~ Cou,.J-r I ONL'f Ml FA/ l'os"1 j M1",.Jo1L

0 No No fC Ft>A. (ou1'f 2 P3 G11.D lllFf /31>/ F'i.--e.aitl

Respondent Ordered to:

Custody Release Secure Detention

@.'!<JG'

001

• IN THE CIRCUIT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA.

CASE NUMBER

JUVENILE CASE HISTORY DIVISION

Joie/ ~b-.3qz_

CLOCK IN IN THE INTEREST OF :

Vtl/-Y.i I 7)_,t,Vlrr DATE TYPE OF HEARING ACTION

>--14-lb /)-tJ.pPJ-lhi It tldi - 3 d(t,u .s 5 . .0~ ' I

~·) Jhn ri'M.NaP. A..I\~~ . l.tft/ lbvrf LOJ.f-.!U ~JSLJJl_ J .

CLK/CT 572 REV. 6/03 Clerk's web address: www.miami-dadeclerk.com 002

e SOUNDING DATE: 2/15/2016 at

CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR . l. MIAMI-DADE COUNTY, FLORIDA. JUVENILE DIVISION

IN TH~TEREST OF: CASE NO: 116000392 J014

"' ., .::=;;I • DEVON GREGORY VICKERS

PETITION FOR DELIN@ENEW ::.. ~ ·~: :.;· C._.,:J - ·c~

,. t~·,

A CHILD en

('

TO THE JUDGES OF THE ABOVE ENTITLED COURT -;;:· ,"'

Your Petitioner, KA THERINE FERNANDEZ RUNDLE, State Attorney of the 11th ti'.idicial~:. Circuit of Florida, by and through her undersigned Assistant State Attorney, respectfully represent~nto the Court as follows: ·

THAT: DEVON GREGORY VICKERS , 15 , 11/21/2000

Who resides at 18000 NW 7TH PL MIAMI GARDENS, FL 33169

is a delinquent Child within the intent and meaning of the Laws of the State of Florida, F.S. Chapter, 985, in that,

COUNT 1 : FIREARM/POSN/MINOR

This Child, on or about February 12, 2016, in Miami-Dade County, Florida, being a minor under the age of 18, to wit: 15 years old, did unlawfully possess a firearm, in violation of 790.22(3) Florida Statutes. (Ml)

To the parents and/or legal guardian(s) of said child:

JEANETTE MICKLE

18000 NW 7TH PL MIAMI GARDENS FL 33169

WHEREFORE your petitioner prays that process may issue in due course to bring the above-named child and parents, or legal guardian, of said child before the Court to be dealt with according to law.

ST A TE OF FLORIDA ) COUNTY OF MIAMI-DADE )

Before me, an Officer duly qualified to administer oaths, personally appeared the aforesaid, who is personally known to me and who after being duly sworn, deposes and says tll.e .a gations of the foregoing Petition are filed in good faith and are true according to such person's i formation, knowledge and belief.

SWORN TO AND SUBSCRIBED before me this p

Page I of l 003

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NUMBER

JUVENILE

DIVISION Jo11 CUSTODY STATUS I HOME

DETENTION ORDER

IN THE INTEREST OF :

A CHILD jJj CLOCKIN

FI LED FEB 1 3 2016

11~21 .. 00 D.0.8. ____ _ RACE ____ _ GENDER_/YJ __

PRESENT: D Parent(s) D Legal Guardian D DJJ D DCF D GAL D Attorney for Child

The above-name child was taken into custody on _ :J- / :i __ , ___?- D / ~ ___ . Upon a review of the file and being advised, it is

ORDERED AND ADJUDGED that the above-name child is to be placed in:

Secure Detention care The Custody of parent/ guardian.

D D D Temporary custody is given to _____ whose relationship to the Child is that

of __ . Temporary custody is granted solely for the purpose of D

D

removing child from secure detention. Child shall be released from secure detention on and only on this date. Department of Juvenile Justice secure detention care/pending placement by

D Department of Children and Families or D Department of Juvenile Justice

Home Detention Care (Restrictions & Conditions as specified on contract) Non secure detention care/secure detention upon violation

As a result, the Court imposes the following conditions:

D D D D D D

Curfew___ __on weekdays-----· Mandatory daily school attendance Keep scheduled appointments for evaluations, if any No law violations or use of illicit drugs Stay away from victim(s)/co-respondent(s) {see order} Other

on weekends

In ordering detention, the undersigned finds probable cause that the child has committed a delinquent act and meets statutory

It is FURTHER ORDERED: Unless an adjudicatory hearing h~b!,g ~r,;t:Jbsequent modifi ation qrder }s enter J e detention criteria as found is F S.985 215, Florida Statutes. d 4 J

D Child shall be RELEASED no later than 5.00 p.m. on_ ..::J LP (date) to: taN l 1rt- I D The case set for review by the undersigned on ____ day of at ______ a. . /p.m.

In Courtroom

Pursuant to F.S. 985.039, THE COURT FURTHER ORDERS that the parent/guardian shall pay Department of Juvenile Justice:

D For Secure Detention $5.00 per day. D For Home Detention $1.00 per day. D A Reduced Fee of ______ per day.

0 Fees are Waived.

If the child's case therein is dismissed or if the child is found not guilty of the charges or other matter supporting the detention in this order, the parent/guardian shall not be liable for payment of the fees ordered herein and the fees paid shall be refunded to the payer forthwith.

THE JUVENILE'S PARENT/GUARDIAN SHALL ADVISE THE CLERK'S OFFICE AND DJJ OF ANY CHANGES OF ADDRESS.

DONE AND ORDERED in Miami-Dade County, Florida, on this / 3 of __ <Wi:{~~- .. / ,-~:;::::~'-----"=:;;:::::=

White - File Copy

CLK/CT 064 Rev. 05/11

Green/Canary - DJJ/Detention

Circuit Ju

...__ ____ j~uoGE ROBERT J. LUCK

Pink - PD/Defense Gold- State

Clerk's web address: www.miami-dadeclerk.com 004

• Filing# 37921818 E-Filed 02/17/16 02:01:48 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY

IN THE INTEREST OF:

DEVON VICKERS A Child.

I

CASE NO.: 116000392 SECTION: J014 JUDGE: ORLANDO A. PRESCOTT

ACKNOWLEDGMENT OF APPOINTMENT AND NOTICE OF DISCOVERY

COMES NOW, Carlos J. Martinez, Public Defender in and for the Eleventh Judicial Circuit of

Florida, and hereby accepts the appointment to represent the Respondent in the above-styled cause on the

assumption that the following legal requirement of section 27.52, Florida Statutes, has been or will be met:

1. An Affidavit of Indigent Status is filed with the Clerk of Court.

2. The Clerk complies with the requirements of section 27 .52, Florida Statutes.

3. The Clerk determines that the Respondent is eligible to receive the services of the Public

Defender, the Court determines that the Respondent and his parents or legal guardians are indigent, the

Court determines that the parents or legal guardian of the indigent Respondent are not indigent but refuse

to employ counsel, or the Court determines that the Respondent's family is unable to hire an attorney

without a substantial hardship to them.

4. The Clerk imposes the $50 Public Defender application fee.

5. In the event of a conviction for a delinquent act, violation of probation, or community control,

at least the minimum prescribed attorney's fees and costs shall be imposed as set forth in, and pursuant to,

sections 985.29 and 985.033, Florida Statutes.

6. In addition, the Respondent hereby elects to participate in the discovery process pursuant to

Florida Rule of Juvenile Procedure 8.060 by filing with this court and serving on the prosecuting attorney

this Notice of Discovery. The Respondent also demands that the prosecuting attorney disclose and provide

any information or evidence within the state's possession, control, or knowledge which tends to negate the

guilt of the Defendant in the above-styled cause.

005

I CERTIFY that a copy of this Acknowledgment of Appointment and Notice of Discovery has been

hand-delivered to and/or eServed upon the Office of the State Attorney, 155 NW 3rd Street, Suite 8000,

Miami, Florida 33128 on February 17, 2016.

Respectfully submitted,

Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 155 NW 3rd Street, Suite 7000 Miami, Florida 33128 305.679.1900 eService email: [email protected]

Isl Alexis Alvarez Assistant Public Defender Florida Bar No.: 120069

006

JUVENILE DIVISION

~DI IN THE INTEREST OF :

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

ADJUDICATORY ORDER

TRIAL

A CHILD v I Q., ~~

DOB: l ( .).{ ;)-OO c) RACE SEX

CASE NUMBER

FJi.KE D J};' 0 8 20t6

HARVEY RUVIN CLERK, CIRCUIT COURT MIAMI-DADE C

This cause came to be heard before this Court for trial, and after having heard from witnesses and counsel, the Court finds as follows:

0 The previously entered plea of denial was changed to one of admission/nolo contendere as to

~=---------------------------of the Petition. p/S~ child committed the act(s) described in Ge1:1Rt(s) _________ 'fJhe Petition.

D Said child plead to/committed the lesser included offense(s) of __________________ as to

Count(s) _________ of the Petition.

0 The state announced the abandonment/nolle prosequi of Count(s) ________ _

0 The Court has reasonable doubt to believe the child committed the act(s) described in Count(s) _______ _

_________ of the Petition.

IT IS THEREFORE ORDERED AND ADJUDGED:

0 Said child is adjudicated to be delinquent.

D Said child is committed to the Department of Juvenile Justice (see attached Commitment Order).

0 Adjudication is withheld.

D Said child is placed on Probation (see Probation Order).

D This cause is dismissed for--------------------

0 A Judgment of Acquittal is entered as to Count(s) _________ of the Petition.

D This cause is transferred for ____________ to the _________ Judicial Circuit in and

for ________ County, Florida, in which the child resides. Respondent

address is:

0 Said child is given a Judicial Warning.

0 Further _____________________________________ _

The c~ld is to be present for Disposition on

'1--tj- . DONE AND ORDERED in Miami-Dade County, Florida this (j

Clerk's web address: www.miami-dadeclerk.com

CLK/CT 78 Rev. 2/10 WHITE-FILE COPY YELLOW-DJJ 007

• • r (}u_ (\ ) CIRCUIT COURT - JUVENILE DIVISION

\ EXHIBIT LIST IN THE INTEREST OF J l ~s I ~\( Q}::) JUDGE __,A?~v1._~--..et;_'_1_l--.-I'_,__ cASE#...J I le -Z>CJ PoucE CASE# '()jr;tJO J..? f 1 CLERK -~-'---s-fb~n"--W""""'""'-'¢1---'-t_kj_ IN~ITTO~WC~ION_~-~~~-----!~~L~~E~D~----------~ DATE OF DISPOSITION __ Zf~--·_( _4_-~/_,.~---- ~

l lJ () MAR 0 8 2\l\6 I I AGENCY --------------- Page of_-'----

DESCRIPTION OF EXHIBITS

COMPLETE THIS SECTION IF EVIDENCE RETURNED IN COURT.

DATE RECEIVER

STATE STATE DEFT'S DEFT'S EXHIBIT EXHIBIT EXHIBIT EXHIBIT

M.F.I. M.F.I.

1-A- I

008

• IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

JUVENILE DIVISION

IN THE INTEREST OF

Error! Reference source not found. DEVON VICKERS, a Child

Case No. 116392

ORDER

-0

~ ~ .. <A

THIS CAUSE coming on to be heard upon a petition filed herein, and all parties entitled to

notice of this hearing having been duly notified thereof, and the Court having received the

testimony and the evidence, and being fully advised in the premises finds that the Department of

Corrections shall transport Devon Vickers, DOB: 11/2112000, RACE: BLACK, SEX: MALE,

JAIL #161489, CELL LOCATION , presently housed in the Turner Gilford Knight

Correctional Facility to: Courtroom 9-4, 155 Northwest 3rd Street, Miami, FL, on 05/24/2016, for a

disposition before the Honorable Prescott at 9 a.m. and to return said child to the Dade County Jail

immediately thereafter.

IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this cause for the

purpose of making further or other orders for the welfare of any child named herein as may be from

time to time found necessary.

DONE AND ORDERED at Miami, Miami-Dade County, Florida, this the / {l

day of_~A1~a~7+-----' 2£1 (, ..

CIRCUIT COURT JUDGE ~:::::...-=-JUVENILE DIVISION (

0055 - Document I IMB Error! Reference source not found.IError! Reference source not found. 009

IN THE INTEREST OF:

DEVON VICKERS, A Child.

• FILED

MAY 2 4 2016 HARVEY RUVIN

Ct ~ ;:;,_<; C RCU!T COURT ~AMl-OAflE, CO. Fl.A.

IN THE CIRCUIT CO. OF THE ELEVENTH JUDICIAL CIRCUIT 'LORIDA IN AND FOR MIAMI-DADE COUNTY

JUVENILE DIVISION

CASE NUMBER: SECTION: JUDGE:

116000392 J014 ORLANDO A. PRESCOTT

ORDER OF INSOLVENCY AND APPOINTMENT OF COUNSEL

THE COURT having been fully advised in the premises finds the Respondent indigent, it is therefore,

ORDERED and ADJUDGED, that the Respondent is insolvent for the purpose of Appeal and therefore,

the Public Defender of the Eleventh Judicial Circuit of Florida is hereby appointed to represent the Respondent

in the appellate proceedings.

DONE and ORDERED in Miami-Dade County, Florida, this Zif day of --~~---

20 IP

Orlando A. Prescott Juvenile Judge

010

• • IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR DADE COUNTY, FLORIDA

JUVENILE "Jc I '-1

IN THE INTEREST OF:

PROBATION ORDER

DOB:

II - 1-/ -z_ooo

<;ASE NUMBER J/b-~2-

ACHILD

MAY Z 4 2016 HARVEY RUVIN

CLERK CIRCUIT CO.Y~ :JIA, MIAMl-OADE, CO. t~ Y"

This court having heard from all relevant parties concerning appropriate disposition, it is hereby Ordered:

That adjudication of delinquency is withheld. That the child is adjudicated delinquent.

Further Ordered:

0 Credit time served 0 Non Reporting Probation 0 Suspended Entry of Sentence (S.E.S.) 0 Judicial Admonition 0 Delinquent Over 19 Years Old 0 Supervision Interstate Compact 0 Deceased 0 Dismissed 0 Other ~-----.......,d.--tt-y-~--~-U/-r_<L_d-.-a...__,h.--,.._f-i-.-o 11--------

All parties are advised that an appeal is authorized by law within 30 days from the date of this order.

DONE AND ORDERED AT MIAMI, FLORIDA, THIS 2Lf DAY OF May 2ojJL. '

{}J{/JM4~ CIRCUIT COURT JUDGE

ORLANDO PRESCOI f CIRCUIT COURT JUDGE

011

0 IN THE CIRCUIT COURT OF THE ELEVENTH JUDIC UIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA.

0 IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA. 575 DIVISION D CRIMINAL o DOMESTIC VIOLENCE

FINAL JUDGMENT ASSESSING ATTORNEY'S FEES

o JUVENILE AND COSTS

o TRAFFIC/MISDEMEANOR

PLAINTIFF VS. DEFENDANT

STATE OF FLORIDA

D. v. CASE NUMBER:

THIS CASE, having come to be heard on _~_-_ZJ_Y,_-_/_1, __ to determine and assess costs and/or fees for a court-appointed

Public Defender, Special Assistant Public Defender, or Conflict

Attorney pursuant to Section 938.29, Florida Statutes, it is

ORDERED AND ADJUDGED as follows:

•

CLOCK IN

FI l ED fviAY 2 4 2016

HARVEYR~ CMLERK C1Rcurr COURT IAM~E.CO.

1. The above-referenced case involved the following cause of action: (check one)

D Traffic D Misdemeanor D Non-Life Felony D Life Felony D Capital Felony '{]'Juvenile Delinquency

2. (a) The Defendant/Recipient in the above-referenced case entered a plea of --~A_d_M_1_:s_s_1_·{)_fl _____ _

at the A J..j · stage of the case

OR

(b) A non-jury/jury trial was held and a verdict of guilty was entered against the Defendant

/ 3. Probation/Community Control was ___ was not ___ imposed.

4. The State of Florida, shall have and recover, of and from:

Defendant/Recipient

Name vSE'c!;!"\.f<'tte... lU ,,,e,kJe Date of Birth v /- 3..- (,,t.

Addressi7l bO UU/· ~/iV'4 fJt11 /j~;/ Mother/Guardian (Required if Defendant is a minor)

Name _________________ _ Date of Birth -------------

Address-----------------

Yellow - Defendant or Parent(s) Pink-State Attorney Gold - Defense Attorney White - Court File

CLK/CT 40 REV. 03/15 PAGE 1OF2 Clerk's web address: www.miami-dadeclerk.com 012

DIVISION

o CRIMINAL ~ DOMESTIC VIOLENCE ~ JUVENILE

o TRAFFIC/MISDEMEANOR

NAL JUDGMENT ASSESSING ATTORNEY'S FEES

AND COSTS

Father/Guardian (required if Defendant is a minor)

CASE NUMBER: ;J { {p _ 3

q z_

Name _________________ ~ Date of Birth-------------

Address----------------

the sum of:

Attorney's Fees

Allowable Costs

TOTAL

FOR WHICH LET EXECUTION ISSUE

$ 5 o.v $----~----$

t;;/J.00 ---------

:,-<).Vt) 5. Pursuant to Section 938.29, Florida Statutes, a lien in the total amount of $ in favor of the

State of Florida, is hereby ordered and imposed against the assets, both real and personal, which person(s)

named in paragraph 4 now own or hereafter acquire.

6. The Clerk of this Court shall record a certified copy of this Judgment in the public records for Miami-Dade County,

Florida, subject to section 55.10, Florida Statutes.

7. Payment of this Judgment may be in lump sum or installment payments, with this Court's permission, by cashier's

check or money order, in person or by mail, to:

D Clerk Circuit and County Courts Criminal Division Information Unit FELONY 1351 N.W. 12 Street, Suite 9000 Miami, Florida 33125

D Clerk Circuit and County Courts Traffic Division Information Unit MISDEMEANOR 1351 N.W. 12 Street, Suite 8100 Miami, Florida 33125

D Clerk Circuit and County Courts Domestic Violence Information Unit 175 N.W. 1 Avenue, Room 142 Miami, Florida 33128

~ Clerk Circuit and County Courts Juvenile Division Information Unit 155 N.W. 3 Street, Suite 3300 Miami, Florida 33128

D Clerk Circuit and County Courts Traffic Division Information Unit 1351 N.W. 12 Street, Suite 124 Miami, Florida 33125

Payment must be accompanied by name of Defendant/Recipient and case number.

8. Upon payment in full of this lien, or upon settlement, compromise, or other disposition of this debt and lien, the Clerk

of Courts of Miami-Dade County, Florida, shall send to the above-named person(s) by mail a Satisfaction of Lien.

DONE,'\ND ORDERED in Miami-Dade County, Florida, this 2-'f day of _____ M __ tt_y ______ _ 20_/_~_.

White - Court File

CLK/CT 40 REV. 03/15

JUDGE

/) n /l ~-.'""'

~~4eJ

Yellow - Defendant or Parent(s) Pink-State Attorney Gold - Defense Attorney

PAGE 2 OF 2 Clerk's web address: www.miami-dadeclerk.com 013

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

TOTAL MISDEMEANOR

• Add'I. Court Cost •Temporary Criminal Surcharge •Fine • Surcharge (5% affine) • Teen Courts • Crimes Prevention Program (Ord

GRAND TOTAL

939.185(1 )(a) 939.185(1)(b) 775.083 938.04 938.09(0rd.98-185) 775.083(2)a

Payment can be made with cash, o ey order, credit card or shier's check, make payable to the Clerk of Courts. Please indicate your name, above c number, and writ " mes/Costs" on your payment. You are responsible for keeping the receipt for your records. Payrnio<Af.-,Af'l1"fT"l!!•

Miami Dade Children's Courthouse, Clerk of Courts, 155 NW Third Street, Room 3300, Miami, Fl 33128

Respondent Signature ~. D" VlKl Vi"ed:-er Date r s- ~ Qll/-' d£?l..t'

Address of Respondent()l:-/ J b C:O 71· 112• , )' /4 A J/e Zip Code X, 3 3 JC:, '1 Done and Ordered in Miami-Dade County, Florida thi , 2J ifZ__.

* DISCHARGE: C· CONVERTED TO COMMUNITY SERVICE J. JUDGMENT/LIEN P- PLEA (STATE NEGOTIATED) S-SUSPENDED T-TIME SERVED W-WAIVED

White - Court File

CLK/CT 142 Rev. 03/15

ignature

Canary - Respondent Pink- Office

Clerk's web address: www.miami-dadeclerk.com 014

Filing # 42055029 E-Filed 05/2.ll 6 10:06: 16 AM • IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO.: J16-392

JUDGE: ORLANDO A. PRESCOTT

D.V., a juvenile Respondent/ Appellant,

vs

THE STATE OF FLORIDA Petitioner/ Appellee.

I NOTICE OF APPEAL

NOTICE IS HEREBY GNEN that D.V., the Respondent/Appellant, appeals to the District

Court of Appeal of Florida, Third District, the order of this court rendered May 24, 2016.

The nature of the order is an order withholding adjudication of delinquency and placing

respondent on probation.

Undersigned counsel hereby designates, pursuant to Rule 2.516, the following e-mail

addresses for the purpose of service of all documents required to be served pursuant to Rule 2.516

in this proceeding: [email protected] (Primary E-Mail Address);

[email protected] (Secondary E-Mail Address).

I HEREBY CERTIFY that a true and correct copy of the Notice of Appeal was delivered by

emailed to the Office of the Attorney General, Criminal Division, 444 Brickell Avenue, Suite 650,

Miami, Florida 33131 at [email protected], and to the Office of the State

Attorney, Juvenile Division, [email protected], on May 27, 2016.


Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida 33125 305.545.1958

Sfiannon Jfemmendinger Shannon Hemmendinger Assistant Public Defender Florida Bar No.: 97947 [email protected]

015

Filing:!~ 1605 E-Filed 06/0.16 04:57:59 PM • IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR MIAMI-DADE COUNTY FLORIDA

CASE NO.: 116-392

JUDGE: ORLANDO A. PRESCOTT D.V., a juvenile

Respondent/ Appellant,

vs

THE STATE OF FLORIDA Petitioner/ Appellee.

I

STATEMENT OF JUDICIAL ACTS TO BE REVIEWED AND DESIGNATION TO THE APPROVED COURT REPORTER OR APPROVED TRANSCRIPTIONIST

The Respondent/Appellant, D.V., a juvenile, files the following statementof judicial acts to

be reviewed:

1. The denial by the trial court of the Respondent's pre-trial motions.

2. The trial court's erroneous rulings on evidentiary matters.

3. The denial by the trial court of the Respondent's motion for adjudication of non-

delinquency at the close of the state's and the Respondent's case.

4. The denial by the trial court of the Respondent's motion to vacate.

5. The restitution which the trial court imposed upon the Respondent.

6. The disposition order entered by the trial court.

The Respondent files the following designation to the approved court reporter or approved

transcriptionist, Absolute Video, Inc., at [email protected] for preparation of the following

transcripts:

03/08/2016 ALL PROCEEDINGS




I, Counsel for Appellant, certify that satisfactory financial arrangements have been made

with the approved court reporter or approved transcriptionist for preparation of the transcripts.

016

• • Pursuant to Rule 9.200(b)(2) and Florida Supreme Court Administrative Order

AOSC07-28, you are required to deliver to us along with the original and two copies of the

paper transcripts three electronic copies of all transcripts in Microsoft Word on a CD-Rom.

I HEREBY CERTIFY that a true and correct copy of the Statement of Judicial Acts and

Designation was emailed to the approved court reporter or approved transcriptionist, Absolute

Video, Inc., at [email protected], the Office of the State Attorney, Juvenile Division, 155 NW

3rd Street, 8th Floor, Suite 8000, Miami, Florida 33128, [email protected] and to

the Office of the Attorney General, Criminal Division, 444 Brickell A venue, Suite 650, Miami,

Florida 33131 at [email protected] on June 1, 2016.


Carlos J. Martinez Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida 33125 305.545.1958

Shannon :J-femmentfinger Shannon Hemmendinger Assistant Public Defender Florida Bar No.: 97947 [email protected]

017

CERTIFICATE OF THE CLERK OF THE COURT

I, HARVEY RUVIN, Clerk of the Circuit Court of the Eleventh

Judicial Circuit of Florida, in and for Dade County, do hereby

certify that the foregoing pages, numbered !_to 17 inclusive of

D.V.

Numbered:J16-392 Family Division-Juvenile Section, and a true

and correct recital and copy of all .such instruments and

proceedings in said cause as appear from the records and files

of my office which appear necessary to be included in the

transcript of reco_rd-on-appeal in compliance with the directions

furnished me.

Pages Numbered: 1-95,1-101,1-108,1-116. Inclusive, embrace the

transcribed notes of the Court Reporter, as made at the hearing

of said cause and certified to me by her/him.

IN WITNESS WHERE OF, I have hereunto set my hand and

affixed the seal of the said Circuit Court at Miami, Dade

County, Florida, this 8TH of AUGUST ~~~~~~~~~-

, A.D., 2016.

HARVEY RUVIN, Clerk

BY:

•

•

STATE OF FLORIDA Petitioner,

vs.

D.V. Defendant .

IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY

JUVENILE COURT DIVISION

CASE NO.: Jl6-392 SECTION: JUDGE: JUDGE ORLANDO A. PRESCOTT

The above-entitled cause came on for hearing pursuant to

the Notice before the Honorable Orlando Prescott, Judge of the

above-styled court, Children's Courthouse Center, 155 Northwest

3rct Avenue, Miami, Florida 33128, Tuesday, March 8, 2016 .

Absolute Video, Inc. (305) 379-4741

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APPEARANCES JUDGE ORLANDO A. PRESCOTT CIRCUIT COURT JUDGE CHILDREN'S COURTHOUSE CENTER 155 NORTHWEST 3RD AVENUE MIAMI, FLORIDA 33128

On behalf of the State: KATHERINE FERNANDEZ-RUNDLE, STATE ATTORNEY BY: Cheryl Claire Armagnac, Attorney

Tierrel Michelle Mathis, Attorney 155 Northwest 3~ Street Suite 8 Miami, FL 33128

On Behalf of the Defendant: CARLOS J. MARTINEZ, PUBLIC DEFENDER BY: Alexis Alvarez, Assistant Public Defender

Danielle Columbus, Certified Legal Intern 1500 Northwest 12th Avenue Floor 9 Miami, FL 33136


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WITNESS:

DETECTIVE BUCHANAN (By Ms. Armagnac) (By Ms. Alvarez)

DETECTIVE TORRES (By Ms. Armagnac) (By Ms. Alvarez)

State's Exhibit lA Exhibit 1

Defense's

NONE

c 0 N T E N T s

DIRECT CROSS

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E X H I B I T S

IDENTIFIED

page 21 page 23


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P R 0 C E E D I N G S

(9:24 a.m.)

MS. ALVAREZ: Your Honor, Mr. D.V. is present

before the Court. He is accompanied by both of his

parents.

JUDGE PRESCOTT: Okay.

MS. ALVAREZ: Your Honor, at this time the

Defense is ready for trial.

MS. ARMAGNAC: The State is ready for trial as

well pending a hallway of Defense witness who is not

here.

JUDGE PRESCOTT: Okay. Set for adjudicatory

hearing today. The charge is one count of

possession of firearm by a minor. The Defense is

ready to proceed?

MS. ALVAREZ: Yes, Your Honor.

JUDGE PRESCOTT: You have listed a Defense

witness?

MS. ALVAREZ: I have listed a Defense witness,

Your Honor. I don't see the Defense witness

present. I have made phone calls. I will continue

to call.

JUDGE PRESCOTT: There is nothing in the file

about the Defense witness. The State was aware of

it?


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MS. ALVAREZ: Yes, it was filed.

JUDGE PRESCOTT: The witness is not here. All

right. Are the parties ready to proceed?

MS. ARMAGNAC: The State is ready. We have our

officers.

JUDGE PRESCOTT: You be kind enough to have a

seat. When I finish calling the calendar, we will

do the trial this morning. Okay. Thank you.

(Off the record.)

(10:58 a.m.)

(Whereupon, the proceedings were continued.)

MS. ALVAREZ: And Your Honor, Mr. D.V. is here .

We are ready for trial.

JUDGE PRESCOTT: Parties announce their

appearances.

MS. ARMAGNAC: Claire Armagnac for the State.

MS. ALVAREZ: Tierrel Mathis on behalf of the

State.

MS. ALVAREZ: Your Honor, Alexis Alvarez on

behalf of Mr. D.V.

MS. COLUMBUS: Danielle Columbus, CLI with the

Public Defender on behalf of Mr. D.V.

JUDGE PRESCOTT: Are there any pretrial motions

to be heard?

MS. ALVAREZ: Yes, Your Honor. I have an oral


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pretrial motion. I am sorry. I don't know if the

State had one.

MS. ARMAGNAC: No pretrial motions from the

State.

MS. ALVAREZ: Your Honor, I do have an oral

pretrial motion. I apologize for not having one

written. But as of hallways, I determined that

there are some things that this Court does not need

to hear in regard to the trial. So we would move to

suppress in limine testimony in regards to two

things.

First, the firearm that was allegedly found

in the vehicle which had four or three occupants was

found to be stolen. It came back on a stolen report

that it was stolen.

Your Honor, I don't think that this

provides anything probative to this case. We are

here on a possession of a firearm by a minor.

Whether or not the firearm is stolen or not stolen

is not relevant.

JUDGE PRESCOTT: State?

MS. ARMAGNAC: The State wasn't planning to

elicit any testimony as to whether a firearm was

stolen. I will warn my officers again not to

mention it.


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JUDGE PRESCOTT: Okay. Go ahead.

MS. ALVAREZ: Your Honor, the second issue I

have in regard to my client. In regard to Mr. D.V.,

I would ask this Court to suppress any testimony

suggesting that he may be part of a gang or any

related gang related activity.

I ask the Court this because, Your Honor, I

asked in hallways if he was suspected to be part of

gang activity. The officer said no. However, they

were part of the gang unit and they were patrolling.

However, they were not responding to any gang

related activity .

However, I want to be clear with this request

to the Court I do intend to elicit that other

possible other passengers may have been involved in

gang activities because I learned in hallways that

somebody was a known gang member.

However, as far as my client ever being

involved with any gang activity, I want to make that

clear that the officer said that she does not know

him to be involved, and I to just want to preclude

any information that may come out suggesting that he

was involved.

JUDGE PRESCOTT: How would information come out

suggesting that he was involved if you said that you


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have spoken to them and they said they have no

information. But you want to preclude the statement

mentioning anything about gangs, but you want to

talk about gangs with the others. I just want to

make sure that I understand.

MS. ALVAREZ: Yes, Your Honor. I can withdraw

the request, and I can clean it up with the

testimony if that's the case. Yes, that is what I

am requesting.

JUDGE PRESCOTT: You are withdrawing it, or you

are letting it stand?

MS. ALVAREZ: I am withdrawing it .

JUDGE PRESCOTT: Okay. So the only motion in

limine that we have right now is that any

information concerning the stolen nature of the gun

not be elicited. And I am granting that. The State

has no objection to that. Okay.

MS. ALVAREZ: Yes, Your Honor.

MS. ARMAGNAC: May I step out and inform my

officers of the Court's ruling?

JUDGE PRESCOTT: Please do.

MS. ALVAREZ: Your Honor, at this time I am

going to request that we invoke the rule, please.

JUDGE PRESCOTT: Have the officers come in so

they can be informed of the rule sequestration,


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please.

MS. ARMAGNAC: Yes, Your Honor.

JUDGE PRESCOTT: If you can be kind enough to

raise your right hand to be sworn.

(Whereupon, the all parties were duly sworn.)

JUDGE PRESCOTT: And your name, ma'am?

DETECTIVE BUCHANAN: Detective Buchanan.

JUDGE PRESCOTT: And do you affirm?

DETECTIVE BUCHANAN: Yes.

JUDGE PRESCOTT: And you, sir?

DETECTIVE TORRES: Yes, sir.

JUDGE PRESCOTT: And your name?

DETECTIVE TORRES: Detective Torres.

JUDGE PRESCOTT: Okay. From this point forward

the rule of sequestration has been invoked. That

means that you cannot discuss the facts of the case

among yourselves or to allow anyone to discuss them

with you.

During the course of the trial, you will be

seated outside of the courtroom until it is your

time to testify. After you have testified, please

do not discuss with anyone the questions posed to

you, the answers given by you. You can speak about

everything else. Okay. The weather, baseball,

whatever, but not about the facts of the case.


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Okay?

DETECTIVE TORRES: Yes, sir.

JUDGE PRESCOTT: I thank you very much. You are

can step out until you are called. And did you

speak to them about the motion of limine.

MS. ARMAGNAC: I did, Your Honor.

JUDGE PRESCOTT: Very well. Thank you very

much. Okay. Opening statements.

MS. ARMAGNAC: May the State proceed?

JUDGE PRESCOTT: Please.

MS. ARMAGNAC: Your Honor, we are here today in

the case against the respondent, D.V. Mr. D.V. is

charged with being a minor in the possession of a

firearm.

In order to prove this charge the State must

prove beyond a reasonable doubt that Mr. D.V. was in

fact under the age of 18 on the date of the incident

which was February 17, 2016. We must also prove

that that he either actually or constructively

possessed a weapon that could be classified as a

firearm.

The State anticipates that through the

testimony of Officer Buchanan and Torres the Court

will hear that this respondent was riding in a

vehicle. He was one of the back seat passengers.


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As the police conducted a traffic stop, they

observed a firearm known as a Glock 17, loaded,

sitting very close to the respondent on the top of

the back seat of the vehicle well within the

respondent's reach.

The gun was not physically on the respondent's

person; however, the State can prove this charge by

showing that the respondent constructively possessed

this firearm. In order to prove constructive

possession, the State must prove that the respondent

knew that the firearm was within his presence. That

he had or shared dominion and control over the

firearm and that he knew of the firearm's illicit

nature.

The State anticipates that the testimony will

convince the Court that it was obvious to the

respondent that this was in fact a firearm. That it

was sitting right next to him. It was in plain view

of the officers and of the respondent and because of

the markings on the gun including the word Glock

indicating that it is a firearm, this respondent had

constructive possession and that he was under 18 on

the date of the incident.

Accordingly, after hearing the evidence, the

State will come again the before the Court and ask


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that the respondent be found delinquent of this

charge.

MS. ALVAREZ: Your Honor, I know you have

heard this before, but in this case it's absolutely

true. Clear proximity is not enough. Your Honor,

throughout the testimony today you will find that

the case that the State brought you that is simply

isn't enough.

The State brought you a case for my client

was one out of three passengers in a car sitting in

the back seat of the vehicle where allegedly a

firearm was in the other seat not where my client's

seat is allegedly in plain view.

Now, what the State will not be able to bring,

Your Honor, is a single statement from my client

indicating anything regarding that firearm. You

know what else they won't bring, Your Honor?

Fingerprints. They won't bring you fingerprints

because they didn't even test the gun for that.

Additionally, Your Honor, what the State won't

bring you is a single drop of my client's DNA on

that gun. You will learn that the lab request was

sent to be tested, but that it never came back. And

more interestingly, Your Honor, you will learn that

my client voluntarily gave a DNA submission when


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requested by the officers.

Now, let me tell you what happened what really

happened on this day, Your Honor. What happened on

this day is my client was sitting in a car with his

friends. One of the friends, the person sitting in

the seat where the gun was found, exited the vehicle

and came around to the passenger side, began

speaking to someone who was in the front passenger

seat.

We have 1, 2 and 3 people in the car. Now

this testimony will come directly to you from

Detective Buchanan. Buchanan will tell you that

they drove pass the street. They saw the car that

my client was sitting in parked in the roadway, and

there was an individual on the outside on the

passenger side speaking to that passenger.

Now, what the Detective Buchanan will also tell

you, Your Honor, is they pulled around. They came

down the block. And by they, I am referring to the

two officers. And they pulled up about a foot or so

from the back of the car where my client is sitting.

Remember my client is a back seat passenger in this

vehicle.

What Detective Buchanan will tell you is that

she activated her lights, turned on her siren.


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Detective Torres will tell you it was a quick siren.

It was a whoop something just to get the attention

and put their presence out there. What Detective

Buchanan is going to tell you, Your Honor, is that

that man, that juvenile, that was standing on the

outside of the car speaking to the passenger in the

front seat, scurried into the house fast.

Now, Your Honor, let me tell you some other

things that you learn about this case. Detective

Torres and Detective Buchanan are going to get on

the stand today, and they are going to try to tell

you my client was in a car that was blocking a

roadway which is why they decided to stop to check

out the vehicle.

However, what the detectives will tell you that

this car full of juveniles was parked in in front of

the house, the same house that that individual

scurried into upon sight of the police.

What the detectives will tell you is they could

have driven past the car. They decided not to

because for tactical purposes they decided to

approach from the rear. But what that says, Your

Honor, the testimony will show that in fact all they

did was approach a vehicle with juveniles sitting in

it that was parked outside of a home.


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One officer will tell you that there was an

area for them to park, a shoulder. The other

officer will tell you that there wasn't. The point

is, Your Honor, to set up the scene so you

understand that these were juveniles sitting in a

car.

Now, what these officers are going to tell you

is they pulled up around the back. They pulled

their car one to two feet away from the car that my

client was seated in, activated their lights,

activated their sirens, got out of the car.

Detective Buchanan is going up to the driver's side .

Detective Torres going up to the passenger side,

Your Honor.

And Detective Buchanan as she approaches the

vehicle, sees in the windows a firearm on the seat.

And, again, upon their approach that person ran

away.

Now, she automatically yells alerts, firearm,

gun. Well, I am going to tell you, Your Honor, the

testimony will show that there is not a shred of

evidence to prove that that wasn't the first time

that my client was also alerted to a gun.

Now, Detective Buchanan alerts to the gun .

Detective Torres takes everyone into custody. They


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1 charge my client out all of the individuals in this

2 car they charge my client because they claim it was

3 in his ready reach.

4 However, Your Honor, not a shred of evidence

5 will come before you today indicating that my client

6 even attempted to move. At any point both officers

7 will tell you they never saw any fidgeting or

8 movement of anyone in the car.

9 There won't be a single piece of evidence to

10 show you that my client although was the only

11 individual in the back seat, Your Honor. Yes, but

12 that he had any ability to possess this firearm .

13 Your Honor, near proximity is not enough. This

14 is one of the most egregious cases of near

15 proximity, Your Honor. And we ask you to find not

16 delinquent in this case.

17 JUDGE PRESCOTT: Call your first witness.

18 MS. ARMAGNAC: The State calls Detective

19 Buchanan.

20 Whereupon,

21 DETECTIVE BUCHANAN

22 having previously been duly sworn, was called as a

23 witness herein and was examined and testified as follows:

24 JUDGE PRESCOTT: Would you be kind enough to

25 step around here, please?


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1 MS. ARMAGNAC: The State has e-filed discovery

2 with the Court and with the Defense.

3 JUDGE PRESCOTT: There is nothing in here.

4 MS. ARMAGNAC: Would the Court like a copy of

5 the discovery?

6 JUDGE PRESCOTT: That's okay. Thank you.

7 DIRECT EXAMINATION

8 BY MS. ARMAGNAC:

9 Q. Good morning, Officer. Can you please

10 introduce yourself to the Court?

11 A. Detective Buchanan.

12 Q . Detective Buchanan where are you employed?

13 A. City of Miami Gardens.

14 Q. Were you employed by the City of Miami Gardens

15 on February 12, 2016?

16 A. Yes.

17 Q. Were you working on that incident?

18 A. Yes.

19 Q. Excuse me on that date. Did you conduct a

20 traffic stop at the location of 18000 Northwest 7th

21 Place, Miami Gardens, Florida?

22 A.

23 Q.

24 A .

25 Q.

Yes.

Approximately at 14:36 in military time?

Correct.

Is that in Miami-Dade County?


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1 A. Yes.

2 Q. Did you come into contact with someone who

3 later became known to you as D.V.?

4 A. Yes.

5 Q. Do you see that person in the courtroom today?

6 A. Yes.

7 Q. Can you please identify him by an article of

8 clothing?

9 A. He is wearing a gray shirt.

10 MS. ARMAGNAC: Let the record reflect that the

11 witness has identified the respondent, D.V.

12 JUDGE PRESCOTT: Go ahead, Counsel .

13 BY MS. ARMAGNAC:

14 Q. How was it that you came into contact with Mr.

15 D.V.?

16 A. Myself and Detective Torres were driving along

17 the road area. We had lot of shootings there recently.

18 So as we were driving westbound on 18Qth Street, I looked

19 to my right and I see a white Audi facing southbound

20 occupied and a male speaking on the passenger side.

21 Q. What did you do when you saw that white Audi?

22 A. We kept on going to the next street to come

23 behind the vehicle.

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Q . After you came from behind the vehicle, what

did you do?


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1 A. I activated my emergency lights, advised them

2 on the radio of a traffic stop, approached on the

3 passenger rear or on the driver's side. Detective Torres

4 approached on the passenger.

5 Q. Let's back up a little bit. So you said that

6 you are approaching from the rear of the vehicle. While

7 you were still in your police car, did you have a clear

8 view of the rear of the vehicle?

9 MS. ALVAREZ: Objection, Your Honor, leading.

10 JUDGE PRESCOTT: Overruled.

11 THE WITNESS: Yes.

12 MS. ALVAREZ: Objection also as to vague clear

13 view.


15 BY MS. ARMAGNAC:

16 Q.

17 were?

18 A.

19 Q.

20 A.

21 Q.

22 sitting?

23 A.

24 Q .

25 A.

Were you able to tell how many occupants there

Yes.

How many were there?

Three.

And were you able to tell where they were each

Yes.

And where were they sitting?

Driver, front passenger, and rear passenger.


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1 Q. Was the rear passenger -- which seat was he

2 seated in?

3 A. In back of the front passenger.

4 Q. Who was that rear passenger?

5 A. The defendant, Mr. D.V.

6 Q. As you approached the car, what did you

7 observe?

8 A. I observed a gun in the rear of the driver's

9 seat. I immediately notified Detective Torres, 55, in

10 the vehicle, there was gun.

11 Q. Where were you standing as you observed the gun

12 in the vehicle?

13 A. In the rear driver's door.

14 Q. How far from the rear driver door were you when

15 you observed the gun?

16 A. I was right next to it.

17 Q. Were you able it to observe the windows of the

18 car?

19 A. Yes.

20 Q. Were they opened or closed?

21 A. Down.

22 Q. After you saw the gun and alerted 55, meaning

23 gun, what did you do?

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A • I grabbed it, and Detective Torres opened the

rear passenger to grab Mr. D.V. And I took it back to


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1 my vehicle to make the gun safe.

2 Q. How were you able to grab it? Did you reach in

3 through the door?

4 A. In the door.

5 Q. Was the door unlocked?

6 A. Yes.

7 Q. As you retrieved the gun and took it back to

8 police car, were you able to observe the gun?

9 A. Yes.

10 Q. Were you able to look at it?

11 A. Yes.

12 MS. ARMAGNAC: Let the record reflect I am

13 showing Defense counsel what is marked for

14 identification as State's Exhibit lA?

15 Whereupon (State) 's Exhibit Number lA was

16 marked for identification.)

17 BY MS. ARMAGNAC:

18 Q. And, also, I am showing the witness what has

19 been marked for identification as State's lA. Do you

20 recognize this item?

21 Let the record reflect that the witness is

22 opening the protective evidence around the item. Now,

23 that you have cut through the evidence tape, do you

24 recognize the item contained within that box?

25 A. Yes.


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1 Q. What is it?

2 A. a Glock 17.

3 Q. Are there any identifying marks on the Glock

4 17?

A.

Q.

7 serial number on the gun that you impounded on the scene?

8 A. Yes.

9 MS. ALVAREZ: Objection, Your Honor,

10 relevance.


12 BY MS. ARMAGNAC:

13 Q. Do you recall what the serial number was of the

14 gun that you impounded on the scene?

15 A. No.

16 Q. Would reviewing the A-form refresh your

17 recollection as to the serial number of the gun that you

18 impounded from the scene?

19 A. Yes.

20 Q. I am showing the officer the A-form. Please

21 review the A-form and look up at me when your

22 recollection has been refreshed as to the serial number

23 of the gun that you impounded on the scene. What was the

24 serial number of the gun that you impounded?

25 A. RC (inaudible).


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1 Q. Does State Exhibit lA which you have in front

2 of you appears to be the same item that you impounded

3 from the scene?

4 A. Yes.

5 Q. How do you know?

6 A. Because it has the same serial number.

7 Q. Does that appear to be in the same or

8 substantially same condition as it was when you impounded

9 it from the scene?

10 A. Yes.

11 MS. ARMAGNAC: At this time the State seeks to

12 move evidence what was previously marked for

13 identification as State's Exhibit lA.

14 MS. ALVAREZ: Your Honor, no objection.

15 JUDGE PRESCOTT: State's Exhibit lA will be

16 admitted into evidence as State's Exhibit 1.

17 (Whereupon, (State)' s Exhibit Number 1 was

18 marked for identification and received into

19 evidence.)

20 BY MS. ARMAGNAC:

21 Q. I am now showing you again what is State's

22 Exhibit 1. Can you please describe the size shape and

23 color of the objects?

24 A •

25 Q.

It's black, Glock 17.

How do you know it's a Glock 17?


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1 A. Because we have similar weapons, and it says

2 what size it is on the gun.

3 Q. When you say we have similar weapons, what do

4 you mean?

5 A. We have a Glock also, a 22, and this one is a

6 17.

7 Q. And is this Glock a make of gun?

8 A. Yes.

9 Q. Approximately how heavy is State's Exhibit l?

10 A. (inaudible)

11 Q. Are you familiar with firearms as part your

12 training as a law enforcement officer?

13 A. Yes.

14 Q. Is that anything about State's Exhibit 1 that

15 indicates to you that it is a fake or replica of a

16 firearm?

17 A.

18 Q.

19 firearm?

20 A.

21 Q.

22 it loaded?

23 A.

24 Q .

25 A.

No.

Based on your observation of it, is it a real

Yes.

When you observed the firearm on the scene, was

Yes.

Did it appear to be operable?

Yes.


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1 MS. ARMAGNAC: Permission to publish State's

2 Exhibit 1 to the Court.

3 JUDGE PRESCOTT: Yes.

4 BY MS. ARMAGNAC:

5 Q. Did you have any contact with Mr. D.V. after

6 you secured the firearm?

7 A. No. After at the station but not at the scene.

8 Q. Did you speak with him at the station?

9 A. Detective Torres. I stood (inaudible) .

10 Q. Did the respondent provide any information as

11 to his age?

12 A . Yes.

13 Q. How old did he say he was at the date of the

14 incident?

15 A. 15.

16 MS. ALVAREZ: Objection, Your Honor, there

17 hasn't been any proffer or foundation laid as to how

18 this statement did come out and if the State is trying

19 to introduce it --

20 JUDGE PRESCOTT: Just give me legal basis.

21 MS. ALVAREZ: I would say improper foundation,

22 Your Honor.

23 JUDGE PRESCOTT: Okay. Overruled.

24 BY MS. ARMAGNAC:

25 Q. So he indicated he was 15 on the date of the


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1 incident?

2 MS. ALVAREZ: And, Your Honor, we would object

3 to hearsay as well.


5 BY MS. ARMAGNAC:

6 Q. Did you do anything to verify his age?

7 A. Yes, we ran him on the computer.

8 Q. Did the computer confirm that 15 years of age?

9 MS. ALVAREZ: Objection, Your Honor, hearsay.

10 JUDGE PRESCOTT: Sustained.

11 BY MS. ARMAGNAC:

12 Q . Let's talk more about when you observed the

13 respondent and the firearm in the back seat of the Audi.

14 How far was the respondent from the firearm?


16 speculation.


18 THE WITNESS: He was within arm's reach, and I

19 would say like two or three feet.

20 BY MS. ARMAGNAC:

21 Q. As you approached the car, did you observe any

22 movements from the front seat passengers?

23

24

25

A. No.

Q . Did you observe the back seat passenger, Mr.

D.V., making any movements as you approached the car?


26

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•

•

1 A. No.

2 Q. From what you could view of the firearm from

3 outside of the car through the open window, was it

4 immediately apparent to you that it was a firearm?

5 A. Yes.

6 Q. Was there anything covering it?

7 A. No.

8 Q. Did the front seat passengers make any

9 statements while you are on scene?

10 MS. ALVAREZ: Objection, Your Honor, relevance.

11 Withdrawn.

12 JUDGE PRESCOTT: You don't want me to rule on

13 it.

14 MS. ALVAREZ: The witness has answered. It's

15 fine.

16 JUDGE PRESCOTT: There was no answer that I

17 heard. Can you just tell me? Withdrawn?

18 MS. ALVAREZ: Yes.

19 BY MS. ARMAGNAC:

20 Q. The firearm in this case you indicated that

21 says 17 on it as well as the serial number, does it have

22 any other words or markings?

23 MS. ALVAREZ: Objection, relevance, Your Honor,

24 overruled .

25 BY MS. ARMAGNAC:


27

•

•

•

1 Q. You can see it again if you would like?

2 A. The make and model and the size.

3 Q. And by make and model what do you mean?

4 A. Who made it and the model of the gun? It also

5 has an imprint.

6 MS. ALVAREZ: Objection, Your Honor. I am going

7 to move to strike that.

8 JUDGE PRESCOTT: As to who put it, sustained.

9 MS. ALVAREZ: Yes.

10 BY MS. ARMAGNAC:

11 Q. The markings as to who made the when you saw it

12 did that indicate to you who did make the gun?

13 A. Yes.

14 Q. Who made the gun?

15 A. Glock.

16 MS. ARMAGNAC: No further questions from the

17 State at this time.

18 CROSS EXAMINATION

19 BY MS. ALVAREZ:

20 Q. Detective Buchanan, so you had encountered my

21 client when you were doing basic patrol, correct?

22 A.

23 Q.

24 right?

25 A.

Correct.

You weren't responding to anything specific;

No.


28

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•

•

1 Q. And you said that you were driving westbound;

2 right?

3 A. Yes.

4 Q. And you saw my client -- you saw a vehicle with

5 three passengers in it to the right side, right?

6 A. Yes.

7 Q. And on the outside of the vehicle, you saw an

8 individual speaking to the front right passenger of that

9 vehicle?

10 A. Correct.

11 Q. And my client Mr. D.V. was in the rear

12 passenger seat; correct?

13 A. Correct.

14 Q. Inside of that car you saw three juveniles?

15 A. Yes.

16 Q. A total of four people by the car if you

17 include the individual who is on the outside speaking to

18 the front passenger? As you drove by and you saw them

19 and you are going westbound and you see them on the right

20 hand side, you don't see any movement, correct?

21 A. Not that I can see.

22 Q. Specifically you don't see my client reach for

23 anything, right?

24 A .

25 Q.

No.

Move down or bend down or anything like that?


29

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•

•

1 A. No.

2 Q. So you say that the car that you saw was in the

3 roadway; correct?

4 A. Correct.

5 Q. And that roadway was a residential area; was it

6 not?

7 A. Yes.

8 Q. And the residential roadway where the car was

9 parked was in front of a home; correct?

10 A. Correct.

11 Q. And the roadway where the car was had two

12 lanes, correct, one going north one going south?

13 A. Right.

14 Q. The car you saw was facing southbound, correct?

15 A. Correct.

16 Q. That road has no dividers as far as the

17 northbound lane and the southbound lane?

18 A. Correct.

19 Q. No. And you said it was enough for two cars to

20 get by?

21 A. Yes.

22 Q. You didn't see any cars passing by; right?

23 A. No.

24 Q . So there was no way for you to indicate if

25 traffic was being obstructed; right?


30

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•

•

1 A. At the time I was there no.

2 Q. And, in fact, you decided -- you and Detective

3 Torres decided to go around and turn down the next block

4 rather than driving up to the side of the car; right?

5 A. Right.

6 Q. And that wasn't because you were unable to pull

7 up to the side of the car; right?

8 A. Right.

9 Q. It was training and experience to come up

10 around the rear?

11 A. Right.

12 Q . So other cars would have been able to get pass

13 the vehicle?

14 A. Right.

15 Q. Okay. So let's talk about that approach that

16 you made you. You go around. You turn down the block.

17 You come and you park your car right behind the car that

18 my client was sitting in the back passenger seat;

19 correct?

20 A. Right.

21 Q. And I don't remember your testimony exactly,

22 but you were close to the car that you pulled up to. A

23 couple of feet right behind the car or one or two car

24 lengths, I believe you said?

25 A. No, I didn't.


31

•

•

•

1 Q. But you were parked close to the vehicle. Now,

2 upon stopping your vehicle, you activated your lights,

3 correct?

4 A. Correct.

5 Q. And then you also activated your sirens,

6 correct?

7 A. Yes.

8 Q. Upon activating your lights and sirens, isn't

9 it true that the individual who was on the outside

10 passenger side of the car speaking to the front passenger

11 occupant, scurried into the house, correct? Ran in there

12 and didn't want to have anything to do with you guys;

13 correct?

14 A. Correct.

15 MS. ARMAGNAC: Objection, calls for

16 speculation.


18 BY MS. ALVAREZ:

19 Q. Now, let's talk a little about that individual.

20 You have had contact with that individual before?

21 A. His parents.

22 Q. His parents. And you have had to respond to

23 his house for gang related shootings?

24 A .

25 Q.

Correct.

And isn't it true that he never came back out


32

•

•

•

1 of that house while you guys were still on scene?

2 A. He just stood at the door.

3 Q. Not coming outside?

4 A. No.

5 Q. And you guys weren't able to speak to him, were

6 you?

7 A. No.

8 Q. So let me back up. So when that person

9 scurries into the house, you guys get out of your car and

10 you are walking up; correct?

11 A. Right.

12 Q . And the windows, all of the car windows were

13 completely down?

14 A. Yes.

15 Q. And you didn't see any movement. Were you able

16 to visualize my client as he walked up?

17 A.

18 Q.

19 that time?

20 A.

21 Q.

22 seat?

23 A.

24 Q .

25 A.

I could see him as the rear passenger.

Okay. Did you see him make any movements at

No.

He didn't reach for the driver passenger side

No.

He didn't lean over?

No.


33

•

•

•

1 Q. He didn't duck?

2 A. No.

3 Q. He just sat there?

4 A. Yes.

5 Q. And you alerted Detective Torres to what you

6 saw on the seat, correct?

7 A. Yes.

8 Q. What was the color of the item that you saw on

9 the seat?

10 A. Black.

11 Q. And that was it, right?

12 A. Yes .

13 Q. Arrested everyone in the car?

14 A. No, we transported everybody back to the

15 station.

16 Q. Okay. And you arrested my client because he

17 was the one in the back passenger seat; correct?

18 A. Detective Torres arrested him.

19 Q. Now, let's go back to the point. You were

20 present when Detective Torres attempted to speak my

21 client; correct?

22 A. Yes.

23 Q. And my client did not provide any statements to

24 the police, did he?

25 A. No.


34

•

•

•

1 Q. He voluntarily upon detective's request

2 provided DNA; right?

3 A. Yes.

4 Q. And that DNA was to be tested with the gun to

5 see if he had any dominion or control or any possession

6 of that gun?

7 A. Correct.

8 Q. Do you know whether the gun was tested for

9 fingerprints?

10 A. Everything should have been done. It's not

11 back yet.

12 Q . Do you know whether or not it was tested for

13 fingerprint or it was dusted for fingerprint?

14 A. I don't know if it was tested already or if it

15 is in the process, but that is our policy. It has to go

16 to Miami-Dade labs.

17 Q. And at the process where you were apprehending

18 the individuals who were in the car, my client was

19 cooperative?

20 A. Yes.

21 Q. Detective, excuse me. You never saw that

22 firearm in my client's hands; did you?

23 A.

24 Q .

25 A.

No.

You never saw it on his person?

No.


35

•

•

•

1 Q. And you never did see him attempt to grab it?

2 A. No.

3 MS. ALVAREZ: No further questions.

4 MS. ARMAGNAC: No redirect from the State.

5 Officer, you are free to go.

6 JUDGE PRESCOTT: Defense, any objection for the

7 officer being released from the subpoena?

8 MS. ALVAREZ: No, Your Honor.

9 JUDGE PRESCOTT: Okay. Thank you very much.

10 (Whereupon, the witness exited the courtroom.

11 JUDGE PRESCOTT: Next witness.

12 MS. ARMAGNAC: Yes, Your Honor. At this time

13 the State calls Detective Torres.

14 JUDGE PRESCOTT: Sir, if you would be kind

15 enough to come forward and walk around this way and

16 have a seat to my right. Thank you.

17 Whereupon,

18 DETECTIVE BUCHANAN

19 having first been duly sworn, was called as a witness

20 herein and was examined and testified as follows:

21 JUDGE PRESCOTT: Are you okay?

22 THE WITNESS: Yes.

23 DIRECT EXAMINATION

24 BY MS. ARMAGNAC:

25 Q. Hi Detective, can you please introduce yourself


36

•

•

•

1 to the Court?

2 A. Yes, ma'am. My name is Detective Torres. I am

3 employed by the Miami Gardens Police Department currently

4 assigned to the Gang Enforcement Unit.

5 Q. Were you working for the Miami Gardens Police

6 Department on February 12, 2016 at approximately 14:36 in

7 military time?

8 A. That is correct.

9 Q. Did you participate in a traffic stop at 18000

10 Northwest 7th Place, Miami Gardens, Florida?

11 A. I did.

12 Q . Did you have occasion to come into contact with

13 someone who later became known you on as D.V. on that

14 date and time?

15 A. Yes, the defendant seated at the defense table

16 with the gray polo shirt.

17 Q. How was it that you came into contact with Mr.

18 D.V.?

19 A. On that day, myself and Detective Buchanan who

20 is also assigned to the Gang Unit had been patrolling the

21 area. We were travelling west on 179th Terrace

22 approaching 7th Place. And I looked to my right which

23 would be north.

24

25

MS. ALVAREZ: Objection, Your Honor, calling

for a narrative at this point.


37

•

•

•

1 JUDGE PRESCOTT: Overruled. Go ahead.

2 THE WITNESS: I looked to my right on 7th place

3 and observed a white vehicle parked in front of

4 18000 Northwest 7th Place.

5 BY MS. ARMAGNAC:

6 Q. Do you remember the make and model of that

7 vehicle?

8 A. At that point, I didn't know what the make and

9 model was. I know it was a four door white Sudan. It

10 was facing southbound. It was facing 179th Terrace.

11 Q. What did you do as you observed this white four

12 door Sudan facing southbound?

13 A. What drew my attention to the vehicle was it

14 was parked on the portion of the roadway which is

15 designated for vehicles that would be travelling

16 southbound on the roadway.

17 And it was anywhere from -- it appeared to be

18 anywhere from 3 or 4 feet away from the edge of the

19 roadway. At that point, we went around. We drove around

20 the block. I believe that would be 8th Avenue. We went

21 around the block and came back. The vehicle was still

22 parked in the same location.

23 Q. If you know approximately how much time passed

24 between when you first observed the vehicle and when you

25 drove around to pull up behind the vehicle?


38

•

•

•

1 A. Not very long, a minute two minutes.

2 Q. Did you pull up behind the vehicle?

3 A. Detective Buchanan was driving the vehicle; she

4 did.

5 Q. Were you riding in Detective Buchanan's

6 vehicle?

7 MS. ALVAREZ: Objection, Your Honor, leading.


9 THE WITNESS: That is correct. I was seated in

10 the front passenger's seat.

11 BY MS. ARMAGNAC:

12 Q . After Detective Buchanan pulled up behind the

13 vehicle, what did you do?

14 A. She activated emergency police lights and

15 sirens. We both exited the vehicle, approached the

16 vehicle. Detective Buchanan approached on the driver's

17 side of that vehicle from the rear, and I approached on

18 the passenger side.

19 Q. As you were approaching from the passenger

20 side, were you able to observe where Detective Buchanan

21 was standing?

22 A. She was standing -- we were both parallel to

23 each other as with we approached the vehicle. She was

24 just seconds from me and at that time I was able to

25 determine that the vehicle was an Audi, a white Audi.


39

•

•

•

1 Q. Were you able to observe how many occupants

2 were in the white Audi?

3 A. Yes, I was able to determine there were three

4 occupants in the vehicle. One being the driver in

5 driver's seat, front right passenger, and rear passenger

6 being the defendant, later found to be the defendant.

7 Q. As you and Detective Buchanan were approaching

8 the vehicle what happened?

9 A. As Detective Buchanan arrived at the rear left

10 passenger side of the vehicle she yelled out gun.

11 Alerted me there was a presence of a gun. At that time I

12 drew my firearm of what she had observed .

13 Q. After drawing your firearm, what did you do?

14 A. I cleared -- visually scanned the interior the

15 vehicle. And I could see that in fact it was a gun

16 laying in plain view right beside the defendant. The

17 defendant's left leg was approximately 6 or 12 inches

18 from his left thigh.

19 MS. ALVAREZ: Your Honor, objection to the

20 statement plain view and that calls for a legal

21 conclusion.


23 BY MS. ARMAGNAC:

24

25

Q . You said that the gun was 6 to 12 inches from

the respondent's thigh. Was it on the seat or was it on


40

•

•

•

1 the floor?

2 A. It was laying on the seat.

3 Q. Was anything covering the gun?

4 A. No, ma' am.

5 Q. Based on what you observed of this item, did it

6 appear to be a real firearm?

7 A. Yes. And the reason being is I have been

8 working for Miami Gardens for the last eight going on

9 nine years. And I have only dealt with Glocks issued

10 Glocks so I am familiar with the appearance of a Glock.

11 Q. Was the firearm sitting next in the respondent

12 a Glock?


14 Q. And you recognized it as such because of your

15 training and experience?

16 MS. ALVAREZ: Objection, Your Honor asked and

17 answered.

18 JUDGE PRESCOTT: Leading.

19 BY MS. ARMAGNAC:

20 Q. Sorry. Did you recognize it to be a firearm?

21 A. I recognized it.

22 MS. ALVAREZ: Objection, Your Honor, asked

23 and answered.

24 JUDGE PRESCOTT: Overruled .

25 BY MS. ARMAGNAC:


41

•

•

•

1 Q. Did you recognize it to be a firearm?

2 A. I recognized it to be a firearm. That is

3 correct.

4 Q. How did you recognize it as such?

5 A. Well, it resembled the firearms that were

6 issued to Miami Gardens. I have had a number of gun

7 arrests which involved the seizure of Glock's, and I can

8 tell it was a firearm with a trigger mechanism and

9 semiautomatic by its shape and its barrel and it's slide.

10 Q. Based on your observations of the firearm which

11 was found sitting next to the respondent, was it a real

12 firearm?


14 speculation. Can we sidebar real fast?

15 JUDGE PRESCOTT: I have the objection.

16 Overruled.

17 BY MS. ARMAGNAC:

18 Q. Based on what you observed, was it a real

19 firearm?

20 A. Yes, there were no indications on the firearm

21 from what I can see that it was a toy gun with the orange

22 barrel at the front. I didn't visually examine the

23 handgun

24 MS. ALVAREZ: Your Honor, at this point we

25 would be renewing again our objection.


42

•

•

•

1 JUDGE PRESCOTT: And it will be sustained at

2 this time.

3 BY MS. ARMAGNAC:

4 Q. Did you have any contact with -- did you arrest

5 the respondent on scene?

6 A. Yes.

7 Q. Did you have any contact with him after the

8 arrest?

9 A. Yes.

10 Q. Did you ask him what his date of birth was?

11 A. Yes.

12 MS. ALVAREZ: Objection, Your Honor, as to

13 foundation. We don't know when these statements were

14 made whether he was in a custodial interrogation.

15 THE WITNESS:

16 JUDGE PRESCOTT: Okay. Overruled.

17 BY MS. ARMAGNAC:

18 Q. While you are having contact with him after his

19 arrest, did you ask him what his date of birth was?

20 A. Yes.

21 Q. Do you remember his date of birth?

22 A. I would have to look at the A-form.

23 Q. Would reviewing the A-form refresh your

24 recollection as to his date of birth?

25 A. Yes. I know the year was 2000. I am not sure


43

•

•

•

1 about the month.

2 MS. ARMAGNAC: Showing Defense Counsel the

3 arrest affidavit.

4 JUDGE PRESCOTT: Per your objection, Counsel,

5 even if he was in custodial interrogation for

6 background, information such as this is admitted.

7 BY MS. ARMAGNAC:

8 Q. Okay. Is your recollection refreshed as to his

9 date of birth?

10 A. Yes, 11/01/2000.

11 Q. Because the respondent was born on 11/1/2000

12 was he under the age of 18 on February 12, 2016?


14 Q. Let's go back to why you approached the white

15 Audi. Did you have a clear view of all three occupants

16 as you approached the vehicle?

17 A. Yes.

18 Q. Did you observe them making any movements as

19 you approached the vehicle?

20 A. No, I did not observe any further movements.

21 MS. ARMAGNAC: No further questions for this

22 witness at this time.

23 MS. ALVAREZ: Your Honor, may I please approach

24 the State on sidebar before I begin my cross

25 examination.


44

• 1

2

3

4

5

6

7

8

9

10

11

12

• 13

14

15

16

17

18

19

20

21

22

23

24

• 25

JUDGE PRESCOTT: Come on.

(Whereupon, the following sidebar occurred.)

MS. ALVAREZ: Your Honor, in regards to the

admissions regarding his age. It was for the

purposes of putting together background information.

At this point I would like to argue to have those

admissions struck because they are hearsay at that

point it's not an admission. If you are accepting

it under just background information, it's a hearsay

issue.

JUDGE PRESCOTT: Hearsay of your client?

MS. ALVAREZ: Yes, Your Honor, because I would

say that of my client it would be an admission of my

client and this is not considered

JUDGE PRESCOTT: So when you go back you just

make your objection and proffer the admission of the

statement and I will rule.

(Whereupon, the sidebar was concluded.)

MS. ALVAREZ: Your Honor, I would object

and ask the Court to strike any testimony from the

witness -- both witnesses regarding my client's age.

As the Court indicated those statements were made in

order to fill out background information, Your

Honor .

And it would be an improper admission because


45

•

•

•

1 at that point the Defense's position is that it

2 would not be considered an admission by party

3 opponent implicating him of this crime.

4 JUDGE PRESCOTT: Okay. Overruled. You can do

5 your cross-examination.

6 MS. ALVAREZ: Yes, Your Honor.

7 CROSS EXAMINATION

8 BY MS. ARMAGNAC:

9 Q. Detective Torres?

10 A. Good morning.

11 Q. Good morning. You came into contact with my

12 client at a time that you were patrolling a given area;

13 correct?


15 Q. You weren't on specific -- responding to a

16 specific call, right?


18 Q. You were driving around the area and you saw

19 the

20 car in the roadway; right?

21 A. Yes, ma'am.

22 Q. Okay. Now, you drove by the car and the car

23 that my client was inside of was to your right, correct?

24 A .

25 Q.

That is correct.

And you were sitting in the right passenger


46

•

•

•

1 seat of Detective Buchanan's police vehicle right?

2 A. Yes, ma'am.

3 Q. And that's an unmarked vehicle, correct?

4 A. Yes?

5 Q. Now, as you were driving westbound, you looked

6 to your right and you see a car as you called the travel

7 portion of the road?


9 Q. Let's talk about this roadway a little bit.

10 This is a residential neighborhood; correct?

11 A. Yes, ma'am.

12 Q . And the car that you saw my client in the back

13 seat of was parked in front of a home; right?

14 A. Yes.

15 Q. Now, on that roadway in that residential area

16 it has two lanes, right?

17 A. Yes north and sound bound.

18 Q. And there is no divider in the middle, correct?

19 A. No.

20 Q. And there is no designated break area or

21 shoulder area for cars to park, correct?

22 A. No designated area. That is correct.

23 Q. So now you didn't see any cars driving on that

24 roadway, correct?

25 A. Not at that time of the observation.


47

•

•

•

1 Q. And the suspicion that you had was that you saw

2 a car parked in the roadway, right?

3 A. Right.

4 Q. When you were driving by and you saw the car to

5 your right hand side, you didn't see anyone fidgeting;

6 right?

7 A. No, I couldn't. But I was a distance away.

8 Q. But you didn't notice anybody moving.

9 Specifically you didn't notice my client making any

10 movements at that time?


12 Q . Now, you would have pulled up on the side of

13 the car had -- you were able to pull up on the side of

14 the car, but you chose to go around the block and pull up

15 behind, correct?

16 A. Yes, based on our training.

17 Q. Absolutely. But if you wanted to you would be

18 able to pull up on the side?

19 A. If there were astringent circumstances probably

20 yes.

21 Q. Okay. So you and Detective Buchanan, Buchanan

22 driving, pulls around the side and pulls up?

23 A.

24 block .

25 Q.

Not on around the side. We go around the

I apologize. That is what I meant. Around the


48

49

• 1 block and then you pull up behind the car that you first

2 observed when driving westbound?


4 Q. And Detective Buchanan activates her lights;

5 correct?

6 A. Right and sirens.

7 Q. And her sirens, correct?

8 A. Just most momentarily of our presence.

9 Q. Okay. So she hits the siren momentarily that's

10 like a whoop or something like that?

11 A. Yes, ma'am.

12 Q . You get out of your vehicles; right?

• 13 A. Yes, ma'am.

14 Q. And you are approaching the passenger's side,

15 and Detective Buchanan is approaching the driver's side;

16 correct?

17 A. Yes, ma'am.

18 Q. And the windows in the car are not completely

19 down, but they are more than halfway down?

20 A. More than halfway down that I recall.

21 Q. And Detective Buchanan alerts you to something

22 in the back seat; right?

23 A. Yes, a gun. Yells out gun.

24 Q. She yells out gun; right?

• 25 A. Yes, ma'am.


•

•

•

1 Q. Not 55?

2 A. I heard gun. She may have said 55, but I heard

3 gun.

4 Q. You heard gun.

5 A. She could have said both, but I don't recall.

6 Q. So it was that alert that actually alerted to

7 you gun, correct?

8 A. That is correct. It could be a second or two.

9 She has got one threat which is the driver on her side.

10 I have two on my side. I don't know. I am focusing on

11 the rear passenger and the front right passenger.

12 Q . Okay.

13 A. When she yells about gun and then I think about

14 the gun.

15 Q. You are focusing on the rear passenger and the

16 front passenger, but you don't see the gun until

17 Detective Buchanan yells her words, correct?

18 A. That is correct, ma'am.

19 Q. Now, after Detective Buchanan makes that alert,

20 you look into the car and you see something on the seat;

21 right?

22 A. A handgun.

23 Q. And you say that handgun was about 6 to 12

24 inches from my client's leg?

25 A. Approximately.


50

•

•

•

1 Q. And it was black; correct?


3 Q. And you can see my client, right, at this point

4 when you are approaching and Detective Buchanan yells

5 gun. You can see him; right?

6 A. That is right.

7 Q. My client doesn't make any gestures towards the

8 gun; does he?

9 A. No, ma'am.

10 Q. Doesn't make any gestures to try to escape or

11 avoid?

12 A • No, ma'am.

13 Q. He doesn't duck down?

14 A. No, ma'am.

15 Q. He didn't wave his arms?

16 A. No.

17 Q. He doesn't make any threats?

18 A. No.

19 Q. And that is about it; right?

20 A. Yes.

21 Q. You arrested my client right after that; right?

22 A. Yes.

23 Q. Now, you took my client back to the station and

24 try to speak to him about what happened?

25 A. Yes, ma'am.


51

•

•

•

1 Q. And he didn't make any statements to you; did

2 he?

3 A. No, he didn't.

4 Q. He was cooperative, correct?

5 A. Yes, ma'am.

6 Q. You actually asked him if you can have a DNA

7 swab?


9 Q. For the purposes of trying to match his gun to

10 his dominion and control?


12 Q . And he provided you that sample; right?

13 A. Yes, ma'am.

14 Q. The gun that you collected that day you never

15 had it dusted or tested for prints?

16 A. No, I didn't. We did request cr~me scene, our

17 scene, but they were tied up on a call. They couldn't

18 respond so at that point I just submitted it for NIBEN

19 and DNA testing.

20 Q. So that gun was never tested for prints because

21 CSI just couldn't make it over there?


23 Q. Let's talk a little bit about the gun that you

24 found. The firearm you say that nothing indicated to you

25 that it was a toy gun, right?


52

•

•

•


2 Q. And you believe that because it didn't have

3 anything glaring like the orange written on the bottom of

4 the toy gun?

5 A. That is correct. And I was familiar with

6 Glocks.

7 Q. Are you familiar with fake Glocks?

8 A. The training ones are usually blue.

9 Q. What about fake Glock's that are just on the

10 street? Are you familiar with them?

11 A. I haven't encountered that.

12 Q. Now, you said did have it gun sent in for

13 NI BEN?

14 A. NIBEN to check for tool impression marks.

15 Q. And the purpose of sending that to NIBEN is to

16 ensure that it's a working firearm, right.


18 Q. Because you never shot the gun, correct?


20 Q. And you wouldn't shoot the gun because that is

21 not protocol?


23 Q. So you don't know whether or not this is

24 operable firearm?

25 MS. ARMAGNAC: Objection, relevance.


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1 Operability is not an element of this crime.

2 JUDGE PRESCOTT: Defense.

3 MS. ALVAREZ: Your Honor, I believe it's

4 relevant as to the investigation that was done in

5 regards to this case.

6 JUDGE PRESCOTT: Sustained.

7 BY MS. ARMAGNAC:

8 Q. Last two questions, detective. I know the

9 State went over this with you. But in that car there

10 were three occupants; right?

11 A. Yes, ma'am.

12 Q . There was the driver?

13 A. Yes.

14 Q. A passenger in the front?

15 A. Yes.

16 Q. And my client who was a passenger behind the

17 passenger side so the rear passenger seat?

18 A. Yes.

19 Q. Okay. You don't know whether or not there was

20 anyone at any point sitting in that other passenger seat,

21 do you?

22 A.

23

24

25

No.

MS. ARMAGNAC: No further questions.

JUDGE PRESCOTT: Any redirect?

MS. ARMAGNAC: No redirect for this officer.


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JUDGE PRESCOTT: Any objection to him being

released from the subpoena.

MS. ALVAREZ: No, Your Honor.

JUDGE PRESCOTT: Thank you very much, sir. You

may step down.

THE WITNESS: Yes, Your Honor.

(Whereupon, the witness exited the courtroom.)

MS. ARMAGNAC: The State has no other

witnesses. At this time we rest.

JUDGE PRESCOTT: Thank you.

MS. ALVAREZ: And, Your Honor, the Defense

moves for judgment Judgement of Dismissal, Your

Honor.

JUDGE PRESCOTT: Are you prepared?

MS. ALVAREZ: Your Honor, I began openings

statements telling you that mere proximity isn't

enough. This case that has come before you has so

many situations like that statement that plagues

this case where the only just verdict would be a

dismissal, Your Honor.

Near proximity isn't enough. Joint occupancy -

- we have so many legal issues here, Your Honor.

Even taken in the light with the facts most

favorable to the State, Your Honor, the State has

not put forth a prima facie case of possession of a


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firearm by a minor.

Now, Your Honor, the State must prove to you my

client was under the age 18 and in the possession of

firearm. What the State must prove to you whether

he was in actual possession or constructive

possession.

For actual possession of a firearm, Your Honor

the State needs to prove that the firearm was in my

client's hand which they have not, in a container in

my client's hand, which they did not and within my

client's ready reach and under his control, Your

Honor .

So if the State is attempting to proceed on a

case of ready reach they have another hurdle, Your

Honor, and that hurdle is dominion and control.

Now, Your Honor, for argument's sake while

pondering this case something that I wanted to bring

to this Court is whether the State can actually go

ever forward on a case of constructive possession of

a firearm when they are talking about possession of

a firearm by a minor.

What makes a firearm illegal when it's

possessed by a minor, is that it's in his actual

possession, that a child possesses a firearm. So

theoretically, Your Honor, I don't have case law for


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this. But it's a thought that I have been

processing as I have been going forward in this

case.

Think about a juvenile, even this juvenile and

this case who is in a car with someone else who has

a gun in the glove box. There is no way that you

find that juvenile in possession of that gun because

he was simply in the car with it.

JUDGE PRESCOTT: Absolutely. Correct.

MS. ALVAREZ: Now, Your Honor, the State has

not proven their case to you even in more likely

than that context. What the State has provided with

you is a vehicle with three occupants. What the

State also brought you is a witness that said there

was a forth individual outside of that car and that

fourth individual ran inside of the house upon

lights and sirens. Now, Your Honor, the detectives

told you the car was unmarked when that car first

came up. That person had no idea it was police.

And that person ran because that was his gun, Your

Honor.

Now, I bring this up to say to Your Honor that

one cannot possess what is not his. One cannot

possess what belongs to another. And this brings us

back to dominion and control.


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JUDGE PRESCOTT: Isn't possession and ownership

two different things?

MS. ALVAREZ: Your Honor, in my going through

the definition and going through researching I have

found case law that distinguishes between ownership

and possession, yes. But finds that if there is

ownership, there can't be possession by another.

And actually I will provide you with this case, Your

Honor.

It is a case of a house. I will admit that

that has does have some facts that are distinct in

the fact that it is a home. However, it does stand

for the proposition that when somebody is let's say

a visitor in a home, a passenger in a car. And

there was something within that vehicle that belongs

to the owner of that car or we have reason to think

belongs to the owner of that home. A mere visitor a

mere passenger cannot be said to possess, if I may.

Maybe the case will be a little more clear than what

I am saying, Your Honor.

So, Your Honor in this case it's the case of

Taylor vs. State 319 So 2d 114. It comes out of the

Second DCA, Your Honor. And I have provided this to

the Court specifically to say that a visitor with no

apparent ability to treat a premises as their own,


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can't be found to be in possession of what is in

that premises, Your Honor.

Now, this case like I said it's factual

distinct in that it involves a home and not a car.

The officer looks through the window of the house

and sees males smoking what appeared to be a

marijuana cigarette. There are marijuana particles

on the cushions. There was a smell of marijuana

everywhere. The defendant in this case did not own

the premises. Similar as my client who did not own

or any have any tie to the vehicle he was sitting

in .

Here the only evidence that the State could

provide about dominion and control, Your Honor, was

the ability to reduce it to her personal dominion or

was her proximity to it. That is what it is. Your

Honor, the only evidence brought to show that she in

this case could reduce the marijuana to her dominion

and control was her near proximity. And Your Honor,

that is what we have here.

We have officers that stood up before you and

said he never even made a movement to it. Never

even alluded to it. Not a single statement, not

DNA, not fingerprints .

The only thing that the State has for you, Your


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Honor, is the fact that he was in the back seat of

the car. Now, going back to what we talked about

earlier. If the State -- if they want to go to a

ready reach, Your Honor, they must also prove

dominion and control.

And the fact that near proximity is the only

evidence of dominion and control that they can

provide is prima facie insufficient, the elements

are not met.

I am not going to spend much time arguing on

the knowledge, Your Honor. I understand that the

item was in plain view and that plain view gives a

presumption to the State. The only thing I am going

to say about that element, Your Honor, is there

needs to be more than mere proximity on the item in

plain view to imagine without a doubt that this

respondent actually saw what was sitting on that

seat. The State didn't tell you what color the car

seats were. We don't know whether or not those car

seats were black just like the color of that gun.

So I would say that the presumption is in the

State's favor since it was plain view.

However, I will provide to you that the

evidence that was given to you questions that .

Questions whether or not that in knowledge plain


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view from my client. This turns down to, Your

Honor, to dominion and control. The case law is

incredible clear, Your Honor, throughout all of the

districts that joint occupancy raises the

presumption that there is no exclusive possession of

this gun.

I submit to Your Honor all of the facts that

the officers gave to you not a single fact they

provided to you gives you any probative reason to

believe that respondent, that my client, had

exclusive possession. No statements, no DNA,

nothing. In fact what they give you is the

possibility of very real possibility of a person who

was sitting in that seat, got dropped off, went

around the side to talk to his friend, and scurried

back into his house and he wasn't going to come back

to own up to that gun, Your Honor. He wasn't going

to come back. He wasn't going to come back for my

client.

Your Honor, the next case that I would like to

provide you with is Hill vs. State. It comes out of

the first DCA. 736 So. 2d 133.

If I may. And, Your Honor I will provide you

this case again to say that if the State is going to

use mere proximity to determine dominion and control


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they must prove that their case is inconsistent with

every reasonable hypothesis of innocence, Your

Honor.

In this case what we have here is the appellant

who was accompanied by a front seat driver in a car.

Officers found cocaine in a bag just barely

underneath the floor, the front seat of the driver,

Your Honor. It was partially concealed underneath

the seat, partially, so the facts are aligned here

where we have plain view partially concealed

possible visibly.

JUDGE PRESCOTT: There is no partially about

this.

MS. ALVAREZ: Your Honor, I would argue there

is partial if we can't determine whether or not the

seats of the car were white or a color that made it

visible.

JUDGE PRESCOTT: So you saying that the State's

Exhibit 1 if the seats were black that it would be

MS. ALVAREZ: I am saying this Court doesn't

know. And, Your Honor, I cite this case to you

because again mere proximity is insufficient to

prove dominion and control and it needs to be

inconsistent with the hypothesis of innocence.


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And I draw your attention to the fourth

paragraph from the top that begins while Appellant

sitting in passenger seat might have seen the bag if

he looked for it or reached under the seat for it.

This does not support a finding that the appellant

had a knowledge of his its presence or any time

controlled it.

No fingerprints on the bag. There were no

fingerprints on the cocaine. And the State in that

case actually noted that the contraband was near the

appellant's feet and that he should have seen it.

However, the Court there says, Your Honor,

circumstances other than mere location of the

substance from which the jury may infer knowledge

there needs to be more than simple more proximity,

Your Honor. And, Your Honor, for the sake of just

providing you with my last case. This case sums

everything that I have told you will right now.

JUDGE PRESCOTT: I prefer if you give me the

cases so I can read them;

MS. ALVAREZ: Your Honor, I provide you this

case from the Second DCA which is NH vs. State 111

So. 3d 950.

And I provide this to you, Your Honor, and I

provide this to you especially on the second


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photograph second full photograph from the top. As

a discussed, whether the State proceeds under actual

ready reach possession theory or under constructive

theory it must prove that the contraband was under

the accused control. The requisite control cannot

be proved merely by proximity.

JUDGE PRESCOTT: And what were the facts in this

one. They saw something in his hand but they were

unable to tell what it was. And when they located

him, they were three people standing around. And

where was the gun found?

MS. ALVAREZ: In the area where they were

standing. Do you find that be full factually

completely distinct?

JUDGE PRESCOTT: Go ahead.

MS. ALVAREZ: Your Honor, I would argue that

the facts that are very similar. If Your Honor,

find the facts to be distinct I would be happy to

line them up. Essentially what you have is three

you have is through juveniles there. You have three

juveniles there. You have three juveniles sitting

in a specific location there. You have three

juveniles sitting in a specific location here in the

car .

You have there yes officers unable to will


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identify what it was. Here, you have officers who

didn't even know there was a gun. They were just

coming up to just check on the car. So I think that

enough similar to have the same reasonable

inferences of this Court, Your Honor.

Then what happens in that case is one of the

juveniles tosses the gun. They actually saw

someone. Make a furtive movement. That's not

something that we have in this case, Your Honor.

What this case stands for, Your Honor, is that

for dominion and control there must be something

more than mere proximity, Your Honor. Nothing was

provided to you other than D.V.'s proximity to that

firearm that was sitting in the car. And, Your

Honor, that is insufficient to survive a motion for

Judgement of Dismissal.

As such we ask you to please to enter a not

delinquent, Your Honor. And, Your Honor, we renew

all defense motions and objections.

JUDGE PRESCOTT: The rulings remain.

MS. ARMAGNAC: May The State respond, Your

Honor.

JUDGE PRESCOTT: Yes, please.

MS. ARMAGNAC: Turning first to Defense

counsel's representation that the person who was at


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window of the car speaking to the front passenger

was the owner of the gun.

The State would like to point out that the

Court heard no such evidence. The officers didn't

testify that they ever saw the person talking at the

window holding a gun. They didn't know this gun to

specifically belong to him. So the State would

request that the Court just remember the evidence

that was heard, and there was no indicating that

this gun belonged to the person who is talking at

the window or to any specific person other than the

respondent at the time that he was in constructive

possession of it.

Case law pertaining to constructive possession

as it relates to felons in possession of firearms

indicates that in order to prove constructive

possession the State must prove that the respondent

knew that the firearm was within his presence. He

had or shared dominion and control of the over

firearm, and he knew of the firearm's illicit

nature.

The Defense argues that in order to prove

constructive possession in this case the State must

have something more than mere proximity some sort of

independent evidence. That is only in a situation


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when it's clear that the other people in the area

also have constructive possession of the contraband.

MS. ALVAREZ: Objection, Your Honor, I believe

that is a mischaracterization of the law.

MS. ARMAGNAC: I pulled case law on the issue.

I only printed one copy of each. I can argue the

case law if the Court would like it.

JUDGE PRESCOTT: Go ahead. I know the law.

MS. ARMAGNAC: So in this case you didn't

hear any evidence as to how close the front seat

passengers were to the gun. The officers didn't

testify that the front passengers tried to reach

into the back seat. The front seat passengers

didn't make any admissions like indicating that the

gun actually belonged to them. There is nothing

even indicating that the front seat passengers knew

that this gun was in the back seat. The officers

didn't testify that they turned around that these

front seat people turned and saw the gun. There is

nothing establishing that the front seat people had

any dominion or control over the gun.

MS. ALVAREZ: Your Honor, I am going to object

to burden shifting.

JUDGE PRESCOTT: I am sorry .

MS. ALVAREZ: we are going to object to burden


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shifting as it's not our responsibility to

JUDGE PRESCOTT: That is correct. You do not

have any burden to present anything.

MS. ARMAGNAC: The State is just pointing out

there was no testimony indicating that these

front seat passengers were even aware of the

presence of the gun. If the State were trying to

prove that the front seat passengers were in

constructive possession we would probably fail.

MS. ALVAREZ: Objection, Your Honor.

JUDGE PRESCOTT: Overruled. Go ahead.

MS. ARMAGNAC: There is nothing showing that

these front seat passengers were aware of the

firearm, aware of his illicit nature or they this

any dominion or control over it. The only person

who would have been aware of the firearm's illicit

nature, who had any dominion or control over the

firearm, and who is aware that the firearm was in

his presence, was this respondent here, D.V.

As to whether the respondent knew of the

firearm's illicit nature which is one of the

elements of constructive possession, the Court heard

testimony indicating this was very clear to those

officers that this was in fact a firearm. It was

marked with the words Glock 17 which Detective


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Buchanan testified signifies that it is the make and

model of the firearm.

The detective was able to see the markings on

the gun. The respondent was sitting right next to

the gun. So presumably he was able to see those

markings as well. The officer testified that this

was very easily a firearm.

The State argues that because the respondent

was so close to the firearm it was sitting right

next to him on the seat. He had ample opportunity

to observe this as well and to become aware of the

firearm's illicit nature .

As to dominion and control over the firearm,

both officers testified that this firearm appeared

to be within the respondent's arm reach, arm's reach

of the respondent and that he was the only person

seating in the back seat. As to whether or not the

respondent knew that the firearm was within his

presence, again, Your Honor, it was sitting right

next to him on the seat. It was daytime. Both

officers were able to see it outside of the car.

The State's position is that the respondent was

also able to see the firearm from inside of the car

sitting right next to it .

Responding to some of the case law that the


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Defense provided. They provided Taylor vs. State

319 So. 2d 114. The defendant in Taylor vs. State

is described as being a mere visitor to the premises

with no apparent authority just to treat the drugs

as her own. That's not what we have here. The

respondent is not a mere visitor. He was a back

seat passenger in the car.

Additionally, in the Taylor case, the drugs are

described to be on the floor next to the sofa where

the defendant was sitting here. Those drugs were

not sitting directly next to the respondent on the

sofa. They were in fact on the floor may have been

partially concealed by the sofa. So in Taylor it's

more believable that the defendant in Taylor didn't

know that the drugs were there because of their

location. That's not what we have here. The gun

wasn't on the gun. It wasn't partially next to the

sofa. It was sitting directly next to it this

respondent.

Similar facts in Hill vs. State, 736 So. 2d

133. The drugs in the Hill case were partially

concealed. And, again, the officers in our case

testified there was nothing covering the gun and

that it was in plain view .

And so for those reasons Taylor and Hill are


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distinguishable from this case and should not

control. Additionally, Hill and Taylor are drug

cases. The charge crime is completely different.

The State argues that the legislative intent would

be different as well. The laws about minors in

possession of firms have a completely different

intent than laws about people possessing drugs. The

legislative intent is that minors and guns should

never be near each other because it's a danger to

the community.

MS. ARMAGNAC: Objection, Your Honor, as to

mischaracterization because I don't believe it's a

legislative intent to have people around drugs

either.

MS. ARMAGNAC: The State is arguing that the

two laws are distinguishable.

JUDGE PRESCOTT: All right. Proceed. Go ahead.

MS. ARMAGNAC: And as to any NH vs. State 111 So

3d 950 as to the Court pointed out the facts of NH

are quite different from the facts in this case as

well.

When the officers saw the respondent and each

holding an item they were not sure immediately

whether it was contraband. And then when they

located what they believed to be the same item NH


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and several other people were surrounding it.

That's not the issue that we have here in our case.

The gun remained stationary for the entire time, but

the officers observed it.

It remained sitting on the seat next to this

respondent and he was only one that had constructive

possession of it per the evidence in this case.

There is nothing indicating that front seat people

had constructive possession. The evidence indicates

that this respondent was the only one.

And when this respondent is the one with

constructive possession, knowledge of the elicit

nature and of the presence of the item, can be

inferred from the evidence that is presented. If it

were a case where multiple people had constructive

possession the State would have to prove something

additional. But that is not the situation here.

This respondent is the only one with constructive

possession. So circumstantially knowledge of the

item, knowledge of the items illicit nature, can be

inferred circumstantially from the evidence that was

presented.

MS. ALVAREZ: And, Your Honor, on that last

thing I am going to object. It's completely against

any legal research that I found as far as


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constructive possession.

JUDGE PRESCOTT: Okay. Thank you. Objection

overruled.

MS. ALVAREZ: If I may clarify to the Court.

JUDGE PRESCOTT: Go ahead.

MS. ALVAREZ: Of the cases that I have found

that deal with that say -- especially under a case

for constructive possession when we are dealing

circumstantial evidence that there must be

independent proof.

JUDGE PRESCOTT: There must be something other

than the proximity that must be established by the

State.

MS. ALVAREZ: Especially going under

constructive Your Honor.

JUDGE PRESCOTT: The Court is familiar with the

law.

MS. ALVAREZ: Thank you, Your Honor.

MS. ARMAGNAC: The State's reading of those

cases is that the excerpt only allows applies when

there are multiple people who are in constructive

possession. And that is not what we have here.

That's not what the evidence shows.

Accordingly, the State believes that we have an

at least an established a prima facie case and we


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request that the motion of Judgement of Dismissal be

denied.

MS. ALVAREZ: the only response Your Honor is

that the fact that it's joint occupancy vehicle

according to the case law raises a presumption of

constructive possession.

JUDGE PRESCOTT: It's your argument that it is

occupied by three other people. It's the State

argument that the two other people that were in the

front of the car. He was only one in the back of

the car, and there was no testimony concerning any

further movement by anybody else. I understand

their argument and I understand yours. And I said I

understand the law.

MS. ALVAREZ: Just for clarification.

JUDGE PRESCOTT: I got you. Okay. The

Court has listened to the argument for the Judgement

of Dismissal. Understanding where we stand right

now, taking the evidence in the light most favorable

to the State and understanding the law as I

understand it to be, the Motion for Judgement of

Dismissal will be denied.

MS. ALVAREZ: Your Honor, at this time may I

please speak with my client?

JUDGE PRESCOTT: Yes. Young man, if you come


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back in here showing your underwear like that, you

are going to serve five days.

(Off the record.)

( 12 : 2 9 : 4 5 p. m .. )

(Whereupon, the proceedings were continued.)

JUDGE PRESCOTT: Okay. We are back in the

record with young Mr. D.V. All parties are present.

Mr. D.V. is present. Would you like to wait for

your husband, ma'am?

UNIDENTIFIED SPEAKER: He is checking on the

car.

JUDGE PRESCOTT: He is checking on the car. Is

it okay to go ahead?

UNIDENTIFIED SPEAKER: Yes.

JUDGE PRESCOTT: Counsel, you had an opportunity

to speak to young Mr. D.V.?

MS. ALVAREZ: I did, Your Honor. Mr. D.V. is

going to remain silent and allow me to do the

argument.

JUDGE PRESCOTT: Okay. Young Mr. D.V., this is

your day of trial. You have the right to proceed to

trial and have the State try to prove you guilty

beyond a reasonable doubt and since the burden is

upon the State to try to prove you guilty, you have

the right to remain silent.


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That means you don't have to say anything.

You don't have to do anything. No one can force you

to testify and your silence would not be used

against you. Do you understand that?

THE DEFENDANT: Yes.

JUDGE PRESCOTT: But although you have the right

to remain silent you also have the right to testify

if you choose to. You make a determination as to

whether or not you want to testify after conferring

with your lawyer.

Your lawyer will give you their legal opinion

as to whether or not you should testify and give you

the pros and cons about testifying. But you your

lawyer cannot make the decision the decision for you

as whether or not you testify. That decision is

yours. Do you understand?

THE DEFENDANT: Yes.

JUDGE PRESCOTT: Have you had an opportunity to

speak to your lawyer to determine whether or not you

are going to testify?

THE DEFENDANT: Yes.

JUDGE PRESCOTT: Has your lawyer given you your

their advice.

THE DEFENDANT: Yes .

JUDGE PRESCOTT: Have you made up your mind?


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THE DEFENDANT: Yes.

JUDGE PRESCOTT: Tell me what you wish to do,

young man.

THE DEFENDANT: Remain silent.

JUDGE PRESCOTT: Okay. Very well. Is that your

decision?

THE DEFENDANT: Yes.

JUDGE PRESCOTT: Okay. Counsel, anything else

that you would like to present?

MS. ALVAREZ: No, Your Honor, other than

closing arguments unless Your Honor is willing to

have a second Judgement of Dismissal .

JUDGE PRESCOTT: There is no second JOD.

MS. ALVAREZ: Then, no, Your Honor we would

just like to move to closing.

JUDGE PRESCOTT: You have the bread and then you

have closing. So you can proceed.

MS. ALVAREZ: Yes, Your Honor. Your Honor, Mr.

.V. is innocent. The only thing that Mr. D.V. did

that day is drive in a car to his friend's house.

Mr. D.V. is innocent. Your Honor, the State has not

proven their case beyond and to the exclusion of

each and every reasonable doubt, Your Honor.

Throughout this closing I am going to give not

just one piece of reasonable doubt but multiple


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pieces of reasonable doubt. And the first thing

that I would like to address actually, the words

that the State put in their own mouth, in their

Judgement of Dismissal, the State indicated to you -

- attempted to indicate that because there were no

statements from the driver or the front passenger --

JUDGE PRESCOTT: Let me stop you for a second.

During the Judgement of Dismissal, you made an

objection as to burden shifting.

The Court did not see it as burden shifting.

More specifically, the Court took the argument made

by the State as to what the State was and was not

able to present during their case in chief. I did

not see it as a burden shifting. What I saw it was

whether or not they were able to carry their water.

MS. ALVAREZ: Yes, Your Honor. Then, on that

account, Your Honor, and what I was going to explain

was what the State presented to you is an extensive

lack of evidence.

What they brought to you is two other

individuals I am just going to say the two other

individuals in the car who they did not bring

anything forth saying excluding to every reasonable

doubt that that firearm belonged to either of them .

Additionally, Your Honor, the lack of evidence


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that was presented to you by the detectives, the

detectives tell you they saw someone scurry into a

house as soon as they turn on their lights and

sirens. The detective tells you that that person is

known to them.

That detective tells you they have been to

that house for shootings, gun related. What did

these detectives do? They didn't even speak him.

The detective told you we didn't try. He was

inside. We didn't go in. We didn't go to them.

That is a lack of evidence, Your Honor.

The fact that there is no evidence from either

of the driver or the front passenger, no statements,

no DNA swab, what that tells you is no investigation

was done, Your Honor, what that tells you is that

everyone jumped to the conclusion that my client

possessed that firearm. And it's not true and my

client is innocent, Your Honor.

Now, I may come back to the lack of evidence

because there is a lot of lack of evidence in here.

But I think that the evidence that has been

provided to, Your Honor is inc~edibly probative of

my client's innocence.

Your Honor, the State -- and, again, to

regurgitate the own words of the State. He was


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charged with this crime because he was so close to

it. That is it. Your Honor, near proximity is

insufficient. The evidence that was presented to

you, Your Honor, is that there was a firearm on the

seat allegedly in plain view on the seat next to my

client.

Now, what does a normal person do when a police

siren go on and lights go on and they know there is

a gun right there and they know may maybe under the

age. What do they do? They make furtive moments.

They hide, they move. They try to conceal the gun.

These officers came up to you and very plainly said

to you no movements whatsoever. None.

I suggest to you, Your Honor, I understand that

the State has the presumption of plain view.

However, this fact, the fact that no furtive

movements especially upon hearing a siren, suggests

that my client didn't see what was on that seat.

Again, actually I am going to turn back to the

lack of evidence because what did these officers

say. They said no statements were made by my

client. They said my client voluntarily submitted a

DNA swab. Where is that DNA swab, Your Honor?

Where is it? It's not here because my client is

innocent.


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These officers didn't give you any evidence as

far as DNA swabbing of anyone else. These officers

didn't give you any evidence as far as anyone else

because they didn't care, Your Honor. All they

wanted to do is jump to a conclusion, write up a

case, put the kid that was in the back seat, charge

him with the gun, and call it a day, Your Honor.

Your Honor, the State I imagine when they get

up to respond may touch on dominion and control.

But as of right now, not a shred of evidence has

been presented as far as dominion and control.

Dominion and control alone circumstantially cannot

be proven. There must be independent proof, Your

Honor. No movements, no statements, no

fingerprints, nothing. Mere proximity being in the

back seat. Honestly the inconsistencies between the

officers are very minor. One officer says that the

firearm was 2 to 3 feet within the arm span of my

client.

The other officer said the firearm was 6 to 12

inches from my leg. Minor inconsistencies.

However, Your Honor, to point it out it's an

inconsistency as to exactly where it was located

where the firearm was located .

Additionally, we have one officer saying that


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the windows were completely down. The other officer

saying that the windows were partially down. I know

these are minor, Your Honor. However, these details

do matter. It goes to show the lack of

investigation and the lack of police work that went

into this.

JUDGE PRESCOTT: Mr. Stewart, dad is putting on

his belt. Tell him to come in anyway. Tell him to

come in so he can hear the argument.

MS. ALVAREZ: And you heard, Your Honor, just

again to draw out this concept of no investigation

and jumping to conclusions. What did Detective

Buchanan tell you? She said yes the gun was dusted

for prints. It was absolutely dusted for prints.

That is policy. If you remember she said that. I

called Detective Torres up here and I asked him were

they tested for prints and he told me that CSI

couldn't make it there to do it. This is my

client's life. I know that we are in juvenile

court, Your Honor, but this is a big deal.

CSI couldn't make it out to fingerprint the gun

but my client sits before you where the State is

supposed to prove beyond a reasonable doubt that he

had dominion and control. That is unacceptable .

It's unacceptable, Your Honor. It's a lack of


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police work. It's a reasonable doubt, Your Honor.

Your Honor, for the last part of my first

closing. I am going to focus on dominion and

control, Your Honor. The State seems to be moving

under a constructive possession argument, Your

Honor. I want to remind you of theoretical

discussion that we had on JOO regarding this idea of

a firearm on its own is not illegal.

What makes it illegal is its actual to

possession on a minor. Now I have told you that I

don't have case law on that, Your Honor. However,

what I will say is back to that example, back to our

example. There is a gun in a room. A gun in a car

and a minor is there. Mere proximity he gets a

charge of possession by a minor. That's not the way

it works. And that is why the case law is so clear

that the State is required to bring before you

independent proof. Knowledge does not infer

dominion and control. Dominion and control does not

infer knowledge. They are mutually exclusive, Your

Honor.

The State has not touched on dominion and

control other than the location of the firearm and

the location of my client. And, Your Honor, in

closing we have a severe lack of evidence. The


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evidence itself does not present anything to you

beyond a reasonable doubt that my client possessed

that firearm and the inconsistencies in the

evidence.

Your Honor, inconsistencies as far as what I

expressed with the fingerprints the policy and that

not happening.

Evidence, Your Honor, the evidence is mere

proximity. Nothing else has been provided, Your

Honor other than the location of the item and my

client and the lack of evidence, Your Honor. Where

was it is investigation in this case? We cannot

simply allow juveniles to be incarcerated, to be

sentenced by the fact that a firearm is near them,

Your Honor. There are cases that are egregious that

do need that. Not this case. This case just does

not have the facts beyond a reasonable doubt, Your

Honor. And Your Honor, we ask you to enter a not

delinquent in this case.

MS. ARMAGNAC: May the State proceed with a

closing argument?

JUDGE PRESCOTT: Please.

MS. ARMAGNAC: During closing argument, the

Defense pointed out that this respondent gave a DNA

swab to the police. However, there is no evidence


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that the police ever told the respondent anything

along the lines of oh, if you give us this DNA we

are going to use it to link it to the gun.

The Defense is attempting to paint the

respondent's giving of the DNA sample as a signal of

his innocence. However, taken along with the other

evidence that we have or the evidence that we don't

have, the State's position is that his decision to

give a DNA swab does not speak to his innocence or

to his guilt for that matter.

The Defense harped on the fact that the

evidence does include fingerprints or DNA. The

State of course will remind the Court that we can

meet our burden through testimony alone. The

State's position is that through the testimony we

have proven constructive possession. The Defense

argued that the statute only contemplates minors who

are in actual possession of the firearms. That only

when they actually possess firearms can they be

found guilty. That is not what the statute says at

all.

The statute does not make any distinction as to

the actual or constructive possession. The State

and the Court are aware from the pleather of case

law pertaining to gun offenses that the State can


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prove possession through constructive possession on

gun offenses.

Nothing in the statute pertaining to minors in

possession of firearms says that a minor has to

actually possess the firearm. The State can prove

it through constructive possession.

Additionally, reading directly from the

statute it 790.22 Subsection 3. A minor under 18

years of age may not possess a firearm other than an

unloaded firearm at his or her home. And it gives

some exceptions.

The word "knowingly" is not included anywhere

in that statutory statute. Now, because we are

going with constructive possession a knowledge

element is added. But this is not the type of

weapons offense -- like, the offense of possessing

an illegal firearm, the State would have to prove

that the person possessing it knew that the firearm

was illegal. That they knew that the barrel of the

shotgun was illegally short. Things along those

lines.

For this, knowingly is not actually an element.

So the State wanted to point that out from the

statute as well. And, again, the evidence showed

that this gun was sitting directly next to the


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respondent within his arm's reach.

Detective Torres testified this gun was

between 6 and 12 inches away from the respondent's

thigh and nothing was covering it. Both officers

testified that as soon as they saw this weapon they

knew that it was Glock. They knew it was firearm.

And that nothing about it indicated to them that

this was replica, a fake. That it was anything

other than a firearm.

And, again because this firearm was in plain

view, it was closest to the respondent, the State,

we have met our burden as to constructive

possession. The testimony indicates that the

respondent knew that the firearm was within his

presence. He had dominion and control over the

firearm, and he knew of the firearm's illicit nature

employ. The firearm's illicit nature and its

presence in the back seat right next to him were

immediately apparent to the officers.

The State's position is that they were

immediately apparent to the respondent as well. As

we argued at the JOD phase, there is nothing

indicating that the front seat passengers had

constructive possession or that they were even aware

of the firearm.


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Additionally, there is no evidence indicating

that the person who is speaking at the window had

anything to do with the firearm.

MS. ALVAREZ: Objection, Your Honor burden

shifting as a reasonable hypothesis of innocence.

JUDGE PRESCOTT: And their argument is that

there is nothing in the evidence to establish that.

Okay. Overruled. The Court does not see it as

burden shifting. Proceed.

MS ARMAGNAC: And the Defense indicated that the

person who is speaking at the window ran inside of

their house upon seeing police lights because they

did not want anything to do with this situation.

Again, Your Honor, no one could testify as to

the desires of this person who is speaking at the

window. Accordingly, the State would ask the Court

to disregard that argument and to simply focus on

the evidence that was heard.

Having the matter of burden, the State

respectfully requests that this Court find that the

respondent, D.V., delinquent of minor in possession

of a firearm.

JUDGE PRESCOTT: It's rebuttal, Counsel.

MS. ALVAREZ: Yes, Your Honor. The State stood

up in their closing and the first thing they


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discussed was the construction of the statute and

the statute not having any knowing requirement.

I have two things to say to that. One, if the

State is attempting to go through a constructive

possession that is an element of constructive

possession. Whether or not it's in the statute is

not relevant if they are attending to prove

constructive possession because not only just a

component a necessity of constructive possession,

one.

Two, again, just speaking theoretically about

this statute, it's interesting that there is no

knowing component. You have heard that the

legislative intent that is in the opposite, Your

Honor, that constructive possession is not

appropriate as there is no knowledge requirement.

Either way as I have said I don't have case law but

I think this is something to consider. Not only to

consider that policy consideration but also, Your

Honor, the policy consideration that I provided to

you regarding this specific case.

There are heinous and egregious cases, Your

Honor, where people, where juveniles -- and I

understand what is going on in Miami with firearms,

Your Honor. This is not this case, Your Honor.

Absolute Videp, Inc. (305) 379-4741

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This is a case of a boy who was in the back seat of

a multiple passenger car.

Your Honor, no evidence was presented in regard

to that other individual who was on the passenger

side regarding what he was doing or whether or not

he was in the car. The Defense is not required to

bring you that evidence.

What I am required to bring you, Your Honor, is

reasonable doubt. And what I can tell you, Your

Honor, is a reasonable doubt is that that individual

was sitting in that car, got out, was speaking to

the passenger, saw police, ran into his home where

they were parked at.

They were parked at his home, and he ran into

the house and wasn't coming back for my client.

Your Honor, this is just not the case. My client is

innocent. That wasn't his gun. He did not have

dominion and control of that gun. Your Honor, the

case that the State relies on circumstantial.

It's completely circumstantial in its

inferencing. And, Your Honor, mere proximity -- if

it's a circumstantial case and all that the State

has is mere proximity, they are required to bring

you independent proof of elements of knowledge, and

the ability to control.


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They have not provided you that, Your Honor.

All they provided you with was a boy next to a gun.

Your Honor, policy wise that is not the precedent

that this Court wants to make.

Your Honor, in this case, the only just verdict

is a not delinquent for my client D.V. Your Honor,

that was not his gun. He did not possess that gun

and, Your Honor, he deserves to go back home back to

school.

He doesn't deserve to be incarcerated or

anything for this crime because he did not do it.

MS ARMAGNAC: The State objects to the Defense

asking the finder of fact to consider the possible

punishment.

JUDGE PRESCOTT: Sustained. Okay. The Court

having had the opportunity to listen to the

testimony of the witnesses and making all

credibility determinations and weighing those

credibility determinations as to the witness.

I have listened to the direct and the

cross-examination. I have listened to the arguments

of counsel who summarized the evidence as they saw

it and made their arguments before this Court.

As the trier the fact, upon that which I have

listened to the testimony is adduced at this court


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at this time, sets forth that the weapon was not

concealed. Thot the weapon was not camouflaged.

That the weapon was in open view in the back seat of

a car next to the respondent in open view within

reach.

Two other individuals in the car both located

in the front, front driver, front passenger. The

testimony adduced is upon the approach of the

officers none of the occupants of the car moved.

There was no further movements, no ducking down, no

reaching, no one moved.

The only person who moved was the person

outside of the vehicle near the front passenger who

upon the arrival of the police left that station and

went to the house. This Court based upon the

testimony finds that since it was the weapon was

-- first, let me back up. I find that it is a

firearm. The evidence showing thirteen bullets.

Since it was not concealed, not camouflaged within

the ready reach of the rear passenger who testified

was the respondent that he had control of that

weapon. Find that he was in actual possession of

that weapon.

The hypothesis of innocence that is being

raised by the Defense is that the person outside of


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the car the weapon belonged to him. Based upon the

testimony that this Court has heard, cannot make

that reach. The reasonable doubt -- the Defense's

argument is for constructive possession it must be

something more. It must be knowledge and the

ability to control.

I find this is actual possession. Because what

the Defense is asking me to do is to put away common

sense. That the weapon that was found either within

a foot or two of the respondent near his thigh in

the back seat not occupied by anybody else that he

did not at any time know was there .

The Court finds that the State has established

beyond a reasonable doubt that it's a weapon. The

child is less than 18 years of age and he was actual

possession of a firearm being under the age of 18.

The Court finds that the State has established the

necessary elements beyond a reasonable doubt. And I

find him delinquent. I am going to set this matter

for disposition.

THE CLERK: April 14th.

JUDGE PRESCOTT: Okay. We are going to give

you contact information for a probation officer. I

need you and your parents to go with the probation

officer. They are going to take history from you


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and compile a report. When you come back on April

18th I am going

THE CLERK: 14th, April 14.

JUDGE PRESCOTT April 14th, I am going to utilize

that report and the law to set forth what the

sanctions will be. Do you understand, young man?

THE DEFENDANT: Yes.

JUDGE PRESCOTT: Mom and dad, do you have any

questions of me at this time? We are going to give

you the contact information for the probation

officer.

THE DEFENDANT: They gave it to me. Come on up

here, young man, and sign your summons. The morning

calendar stands adjourned.

(Whereupon, 12:45 p.m. the proceedings were

concluded.)


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95

REPORTER'S CERTIFICATE

I, Joe Vargas, hereby certify that the foregoing

transcript consisting of 95 pages, inclusive, is a complete,

true, and accurate transcript of the testimony indicated,

held on, Tuesday, March 8, 2016, at Children's Courthouse

Center, 155 Northwest 3rct Avenue, Miami, Florida, 33128, in the

State of Florida vs. D.V. Case No. 1600392, Judge Orlando A.

Prescott.

I further certify that this proceeding was reported

by Absolute Video Inc., and that the foregoing transcript has

been prepared by me or under my direction .

Date: 07 /13/2016

·'~ ,.../r'

,.:::_:~<::_~/·····/ Joe.Vargas Transcriptionist


•

•

•


vs.

D.V. Defendant .



CASE NO.: Jl6-392 SECTION: JUDGE: JUDGE ORLANDO A. PRESCOTT




3rct Avenue, Miami, Florida 33128, Thursday, April 14, 2016 .


•

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•


On behalf of the State: KATHERINE FERNANDEZ-RUNDLE, STATE ATTORNEY BY: Cheryl Claire Armagnac, Attorney

155 Northwest 3rct Street Suite 8 Miami, FL 33128

On Behalf of the Defendant: CARLOS J. MARTINEZ, PUBLIC DEFENDER BY: Alexis Alvarez, Assistant Public Defender

1500 Northwest 12th Avenue Floor 9 Miami, FL 33136


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WITNESS:

State's None

Defense's

NONE

C 0 N T E N T S

DIRECT CROSS

E X H I B I T S

IDENTIFIED


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(8:45 a.m.)

JUDGE PRESCOTT: For the dispo.

UNIDENTIFIED SPEAKER: What is the name?

JUDGE PRESCOTT: D.V.

MS. GORDON: Your Honor, Mr. Raque is here on

this case. He wanted to come up if he could to

address you personally.

JUDGE PRESCOTT okay. Tell him to come up.

MS ARMAGNAC: Your Honor, what the State is

requesting -- Mr. Raque's presence maybe a moot

point. The State is requesting that the dispo be

reset for after April 29th.

JUDGE PRESCOTT: Why?

MS ARMAGNAC: Given his pending charges. He

goes before a grand jury on April 29th. The

instructions from Chief Best [phonetic] whether we

should request to reset the dispo on this matter

until after April 29th.

If his new case will be proceeding to adult

court, we will probably just close this one out

here, but we are not sure.

JUDGE PRESCOTT okay. When is it going to the

grand jury?

MS ARMAGNAC: April 29th.


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JUDGE PRESCOTT: Okay. So set it after that

then.

MS. ALVAREZ: And I believe that would have been

Mr. Raque's request.

THE CLERK: May 5th, 9 a.m., re: dispo.

JUDGE PRESCOTT: Mom, did you understand?

MS. VICKERS: Yes.

JUDGE PRESCOTT: So I am going to reset this

for May 5th. All right. We are going to see

whether or not he is indicted. Thank you.

(Whereupon, at 8:46 a.m. the proceedings were

adjourned.)


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101





held on, Thursday, April 14, 2016, at Children's Courthouse



Prescott.




Date: 07/13/2016

Joe Vargas Transcriptionist


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vs.

D.V. Defendant .



CASE NO.: J16-392 SECTION: JUDGE: JUDGE ORLANDO A. PRESCOTT

[· .. ) (_, i




3rct Avenue, Miami, Florida 33128, Thursday, May 5, 2016 .


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On behalf of the State: KATHERINE FERNANDEZ-RUNDLE, STATE ATTORNEY BY: Cathy Sagesse, Attorney

1350 NW 12th Ave Miami, FL 33136-2102

On Behalf of the Defendant: CARLOS J. MARTINEZ, PUBLIC DEFENDER BY: Brian Raque, Assistant Public Defender

Miami-Dade Children's Courthouse 155 NW 3rd St Suite 7000 Miami, FL 33128-1738


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WITNESS:

State's None

Defense's

NONE

C 0 N T E N T S

DIRECT CROSS

E X H I B I T S

IDENTIFIED


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(10:45 a.m.)

THE CLERK: You want D.V. 16-392, re:

disposition.

JUDGE PRESCOTT: Okay. So help out. Where is

D. V.?

UNIDENTIFIED SPEAKER: Still in custody.

JUDGE PRESCOTT: He is TGK?

JUDGE PRESCOTT: And when did he go to TGK?

UNIDENTIFIED SPEAKER: That was last Friday.

You transferred him to juvenile.

THE CLERK: Judge, he was direct file .

JUDGE PRESCOTT: Do you know what that charge

is?

JUDGE PRESCOTT: This is a possession of a

firearm by a minor. We can do adjudication, credit

time served. Then, we can just leave him over

there. We will have to bring him back to do it.

It's just for dispo.

MS. SAGESSE: And I imagine that my

supervisor would let us do that. We just have to

run it by them.

JUDGE PRESCOTT: Let me put it on for

tomorrow for report, and then we can do the order to

transport. You don't have to be here tomorrow.


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-------------------------------------.

Bear with me. I am asking the State to find out.

He has some very serious charges down there.

This case is serious, but it impales in

comparison to what he has. So what I am

contemplating I am asking the State to see whether

or not -- I don't need to ask them. I can just

bring -- just put it on calendar.

Give me an order to transport and reset it

for disposition. No, they need time to have him

transported from TGK.

THE CLERK: May 24th, 9 a.m., dispo.

JUDGE PRESCOTT I am going to put it on

calendar, May 24th. I am going to have him

transported from TGK over here, and then close this

case out and then he can go back and he doesn't have

to worry about this case anymore. Okay.

JUDGE PRESCOTT: Do you understand, Counsel?

MR. RAQUE: Yes. Judge, and actually that was

going to my suggestion with the State. I have

spoken to the prosecutor who previously handled it

about us taking that route anyway. And I think that

is the best on this case.

JUDGE PRESCOTT: Adjudication, three days,

and the case is closed out. Because the charge --

no, we will do it when he gets here. So he will


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have to be transported over. 5/24. So prepare the

order to transport,- if you would please.

MS. SAGESSE: Yes, Judge.

JUDGE PRESCOTT okay. Thank you.


adjourned.)


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108





held on, Thursday, May 5, 2016, at Children's Courthouse



Prescott.




Date: 07/13/2016



•

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•


vs.

D.V. Defendant.



CASE NO.: J16-392 SECTION: JUDGE: JUDGE ORLANDO A. PRESCOTT

·_,




3rct Avenue, Miami, Florida 33128, Tuesday, May 24, 2016 .


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On behalf of the State: KATHERINE FERNANDEZ-RUNDLE, STATE ATTORNEY BY: Cathy Sagesse, Attorney

1350 NW 12th Ave Miami, FL 33136-2102

On Behalf of the Defendant: CARLOS J. MARTINEZ, PUBLIC DEFENDER BY: Brian Raque, Assistant Public Defender

Miami-Dade Children's Courthouse 155 NW 3rd St Suite 7000 Miami, FL 33128-1738


110

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WITNESS:

State's None

Defense's

NONE

C 0 N T E N T S

DIRECT CROSS

E X H I B I T S

IDENTIFIED


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(9:34:44 a.m.)

JUDGE PRESCOTT: Are we ready on D.V.?

MS. SAGESSE: We are ready.

JUDGE PRESCOTT: Okay. It's a PDR here that I

have never seen before. This can't be right. Sir,

what is he pending trial for? What is he pending

trial? You can just tell me.

CORRECTIONS: Murder first degree.

JUDGE PRESCOTT okay. Any objection to the

adjudication?

MS. SAGESSE: No objection to the adjudication .

JUDGE PRESCOTT: He was found delinquent. He

went to an adjudicatory hearing and was found

delinquent on March 8th of 2016.

Subsequent to that, he has been in TGK pending

a trial for a homicide. The predisposition report

that I have before me is recommending probation, and

I don't think it's appropriate understanding the

circumstances that he is pending because he won't be

going to trial any time soon.

And placing him on probation, I don't think it

appropriate at this time. So what is your

objection? I am listening. I am looking at an

adjudication, and I will just give him the credit


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for time served. Well technically because I if hold

him in secure -- it will be three days secure

detention based upon that for which he is

adjudicated delinquent for. The court cost and the

case will be closed.

You will be adjudicated delinquent. Do you

wish be appointed for the purposes of appeal,

counselor?

MR. RAQUE: Yes, Your Honor.

JUDGE PRESCOTT: Appointing Officer Carlos

Martinez for purposes of appeal. He will be

adjudicated delinquent to serve three days of secure

detention for the possession of a firearm by a minor

and the case will be closed. So you are done over

here. Okay?

THE DEFENDANT: All right. Thank you, sir.

JUDGE PRESCOTT: So since he is already over at

TGK, I am quite sure he can do the three days while

he is there. And we can just close him out here so

he doesn't have to come back over here. Alright,

Gentleman?

CORRECTIONS: Yes, sir.

JUDGE PRESCOTT: Any questions of you mom?

you just

MS. VICKERS: Can you explain to me what


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JUDGE PRESCOTT: He went to trial over here,

and I found him guilty. Since I found him guilty

over here, I am adjudicating him delinquent and

having him serve three days in secure detention for

the gun that he had over here and now this case is

closed.

I have appointed the lawyer to represent him so

they can take an appeal of my decision at trial.

Okay. If I did anything wrong at trial, the

attorney will appeal it to a here court. And if the

higher court believes that I was mistaken, the case

can come back or they can throw the case out .

All right. But his lawyer will handle that.

The Court imposes all statutory cost and fees. I

appointed a lawyer to represent your son. For the

lawyer services, I am going to access a fee of $50

it doesn't have to be paid today. And it doesn't

have to be paid all at once. He can be paid in

monthly installments.

I will give you the necessary paperwork that

you can take to the clerk's office and you can pay

five dollars a month whatever. Okay, ma'am?

MS. VICKERS: Yes.

JUDGE PRESCOTT: Thank you. If you have an

objection to that amount of money, let me know and


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we can have a hearing. Okay. Gentleman, thank you.

THE CLERK: He has paperwork that needs to be

filled out.

JUDGE PRESCOTT: They can take it back for him.

Okay. Don't take him down just yet. They have some

paperwork for him. They will bring it back so he

can sign it. Okay.


adjourned.)


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held on, Tuesday, May 24, 2016, at Children's Courthouse



Prescott.




Date: 07/13/2016



in the interest of: d.v.~ appellant, a juvenile · d said child is committed to the department of...

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