PROVIDED TO LAKE Cl

MILTON HALL

Petitioner,

vs.

STATE OF FLORIDA

Respondent.

COURT OF FLORIDA

sc

THIRD

L.T.

DCA

Case

Case

Case

No:

NO:

NO:

11-2471"

3D08-2580

03-2072

DISCRETIONARY REVIEW OF DECISION OF THE

DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

AMENDED BRIEF OF PETITIONER ON JURISDICTION

MILTON HALL

DC# M00571

LAKE CORR. INST.

19225 U.S. HWY 27

CLERMONT, FLORIDA 34715

PRO SE

TOPICAL INDEX TO BRIEF

^^ PAGE NUMBER

TOPICAL INDEX TO BRIEF i

TABLE OF CITATIONS _=-_----L -L 111

APPENDIX

STATEMENT OF THE CASE AND FACTS 1_2

SUMMARY OF THE ARGUMENT 2

ARGUMENT 2 _ 8

ISSUE

The decision of the Third District Court in

Hall v. State, 36 Fla.L.Weekly D2144 (Fla.

3rd DCA Sept. 28, 2011) expressly anddirectly conflicts with the decisions of

this Court in Cooper v. State, 43 So. 3d 42

(Fla. 2010); State v. DiGuilio, 491 So.2d

1129 (Fla. 1986); and Knowles v. State,

848 So.2d 1055 {Fla. 20~03~K on the samepoint of law.

Conclusion 10

Certificate of Service10

I < ■*

TABLE OF CITATIONS

CASES PAGE NUMBER

Aguilera v. Inservices, Inc., 3

905 So.2d 84 (Fla. 2005)

Chapman v. California, 6,10

87 S. Ct. 824, 386 U.S. 18 (1967)

Cooper v. State, 2,3,5

43 So.3d 42 (Fla. 2010)

Duncan v. Moore 9

754 So.2d 708 (Fla. 2000)

Erickson v. Pardus, iii

127 S. Ct. 2197 (2007)

Haines v. Kerner, iii

92 S. Ct. 592 (1972)

Jimenez v. Weinberger, 9

417 U.S. 628, 94 S. Ct. 2496 (1974)

Knowles v. State, 2,3,6

848 So.2d 1055 (Fla. 2003)

Lewis v. State, 8

780 So.2d 125 (Fla. 3rd DCA 2001)

Miller v. Pate, 9

87 S. Ct. 785 (1967)

Miller v. State, 8

782 So.2d 426 (Fla. 2nd DCA 2001)

Moore v. Illinois, 8

92 S. Ct. 2562, 408 U.S. 786 (1972)

Robinson v. State, 8

989 So.2d 747 (Fla. 2nd DCA 2008)

Ruiz v. State, 8

743 So.2d 1 (Fla. 1999)

11

State V. DiGuilio. 2 3 4 5 s q i n491 So.2d 1129 (Fla. 1986) 2,3,4,5,6,9,10

State v. Lee, 5 6

531 So.2d 133 (Fla. 1988)

U.S. v. Carter, 9

236 F.3d 777 (6th Cir. 2001)

Winqate v. Mach, 8

117 Fla. 104, 157 So. 421 (Fla. 1934)

APPENDIX

ITEM

PAGE NUMBER

Opinion of the Third District Court of Appeal 1-2in State v. Hall. 36 Fla.L.Weekly D2144

(Fla. 3rd DCA Sept. 28, 2011)1.

'Pro se pleadings must be liberally construed in favor of the pro se litigant, however inartfully pled they may beHames v. Kerner, 92 S. Ct. 594 (1972). See also Erickson v. Paid™. 127 S. Ct. 2197 (2007).

Ill

STATEMENT OF THE CASE AND FACTS

Petitioner, Milton Hall, adopts all statement of case and

facts presented in His initial brief on direct review.

Petitioner was charged by grand jury indictment with one

count of murder in the first degree, contrary to §782.04,

Florida Statutes (2003), and one count of robbery with a

firearm, contrary to §812.13(2) (A), Florida Statutes (2003).

Petitioner proceeded to a jury trial. m closing

arguments, the State Prosecutor made several improper arguments

regarding the testimony of a witness, (Hall's mother, Ms. Grant)

by repeatedly mischaracterizing evidence which Ms. Grant

testified to. This error amounted to prosecutorial misconduct

and was compounded by the trial court's erroneous overruling of

the defense's objection to the improper comments.

Petitioner was found guilty as charged, although the jury

did not recommend the death sentence. On direct review, the

Third District Court of Appeal found that "the asserted error,

'if any', was harmless beyond a reasonable doubt." The Court

also found that "the State's closing argument could reasonably

have been interpreted as calling upon the jury to assess the

credibility of the witness's testimony, rather than a

mischaracterization of what that witness testified to at trial."

(See, footnote 1, Appendix). Affirmed September 28, 2011.

1

Petitioner filed rehearing and certification of question of

great public importance but was denied on October 19, 2011.

In light of Cooper v. State, 43 So.3d 42 (Fla. 2010);

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v.

State, 848 So.2d 1055 (Fla. 2003), Petitioner certifies conflict

under the misapplication of law which creates conflict

jurisdiction.

Appeal was timely filed with this Honorable Court. Notice

to invoke Discretionary Jurisdiction has been requested by

Petitioner. This Court should accept jurisdiction.

SUMMARY OF ARGUMENT

The Third District Court of Appeals misapplied this Court's

prior decision in Cooper v. State, 43 So.3d 42 (Fla. 2010);

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v.

State, 848 So.2d 1055 (Fla. 2003), by improperly finding that

the Prosecutor's mischaracterization of witness testimony (the

false identification of her son on surveillance video of a first

degree murder and armed robbery trial) was harmless beyond a

reasonable doubt.

ARGUMENT

The decision of the Third District Court of Appeals in Hall

v- State, 36 Fla.L.Weekly D2144 (Fla. 3rd DCA Sept. 28, 2011)

expressly and directly conflicts with the decisions of this

Court in Cooper v. State, 43 So.3d 42 (Fla. 2010); State v.

DiGuilio, 491 So.2d 1129 (Fla. 1986); and Knowles v. State, 848

So.2d 1055 (Fla. 2003), on the same point of law.

This Court has previously found express conflict

jurisdiction based upon the misapplication of prior decisions of

this Court. See, Aguilera v. Inservices, Inc., 905 So.2d 84

(Fla. 2005)

wWe have jurisdiction pursuant to article V, section 3

(b) (3), Florida Constitution. See Art. V, §3 (b)

(3), Fla. Const. See also Knowles v. State, 848 So.2d

1055 (Fla. 2003) (accepting jurisdiction based on

conflict created by misapplication of decisional law;

Robertson v. State, 829 So.2d 901, 904 (Fla. 2002)

(Stating that misapplication of decisional law creates

conflict jurisdiction); Acensio v. State, 497 So.2d

640, 641 (Fla. 1986) (accepting jurisdiction based on

conflict by misapplication of decisional law."

This Court should find conflict based on misapplication of

several prior decisions by this Court on the same point of law.

A.

Error Is Harmful Even "If" Guilty Verdict Would Otherwise Been

Returned

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986):

Under Florida's harmless error standard, error is harmful

even though a guilty verdict most probably would have been

returned in the absence of that error. If error resulted in the

jury's consideration of some matter (evidence, jury instruction,

or closing argument for example) that the jury would have

otherwise not have considered, and that matter supports the

prosecution's case, error is harmful even though guilty verdict

would have occurred in the absence of the error.

The test is not a sufficiency-of- the -evidence, a

correct result, a not clearly wrong, a substantial

evidence, a more probable than not, a clear and

convincing or even an overwhelming evidence test.

Harmless error is not a device for the appellate court

to substitute itself for the trier-of-fact by simply

weighing the evidence. The focus is on the effect of

the error on the trier-of-fact. The question is

whether there is reasonable possibility that the error

affected the verdict. The burden to show the error

was harmless must remain with the State. If the

appellate court cannot say beyond a reasonable doubt

that the error did not affect the verdict then the

error is by definition harmful.

State v. DiGuiolio, 491 So.2d 1129, 1139 (Fla. 1986) (Emphasis

Added).

Although the District Court expressed the language required

of the DiGuilio standard, (harmless beyond a reasonable doubt).

When reviewing the excerpts from the trial transcripts, the

District Court erroneously substituted itself for the trier-of-

fact by quite possibly weighing the strength of DNA evidence,

and considering the inadmissible evidence of the jailhouse

telephone conversation between Hall and his mother. This

evaluation is expressed throughout the opinion of the District

Court, where the Court stated, "the asserted error, 'if any'..."

As well as when the Court stated "After conducting a thorough

review of the closing arguments as well as the entirety of the

evidence..." Combined, these two phrases along with the

findings in (footnote 1) would lead this Court to call into

question the process and standard of review employed by the

District Court in their analysis of the alleged error.

This Court has continuously reaffirmed this principle in

several cases such as Cooper v. State, Knowles v. state and

State v. Lee.

Cooper v. State, 43 So.3d 42 (Fla. 2010):

In Cooper, this Court found that the Second District Court

had erroneously considered the strength of Cooper's guilt in his

taped statement when applying the harmless error test under

DiGuilio. Likewise, the Third District Court considered the

"entirety of the evidence" which included incrimination DNA

evidence and, quite possibly, the Court could have considered

the inadmissible jailhouse conversation against the Petitioner

in substitution for the trier-of-fact. Petitioner would rely on

this Court's decision to remand Cooper's case to the Second

District Court for reconsideration of the harmless error

standard enunciated in DiGuilio. As the same principle of law

governs here where the District Court erroneously considered the

"entirety of the evidence" when in fact the trial transcripts

contained the entire alleged error or Prosecutorial misconduct.

The "entirety of the evidence" tainted the intended impartial

process designed by the United States Supreme Court in Chapman

v. California, and later adopted by the Florida Supreme Court in

State v. DiGuilio; Knowles v. State; and State v. Lee.

Knowles v. State, 848 So.2d 1055 (Fla. 2003) :

This Court clarified the DiGuilio standard as requiring

reversal even where a guilty verdict would have been returned in

absence of the error. In Knowles this Court reversed the Second

District Court of Appeals' determination that error was harmful

only where it "substantially influenced the jury's verdict."

Id., at 1059.

State v. Lee, 531 So.2d 133 (Fla. 1988):

In Lee, this Court held that

Overwhelming evidence of guilt does not negate the

fact that an error that constituted a substantial part

of the prosecutor's case may have played a substantial

part in the jury's deliberations and thus, contributed

to the actual verdict reached, for the jury may have

reached its verdict because of the error without

considering other reasons untainted by the error that

would have supported the same result.

(Citation omitted). State v. Lee, Id., at 137.

In this line of reasoning by this Honorable Court, the

Third District Court should not have considered "the entirety of

the evidence" because such abundance of evidence is irrelevant

under the standard of the harmless error analysis as set

in State v. DiGuilio.

B.

The District Court's Misinterpretation of Transcript,

Prosecutor's Mischaracterization of Evidence

During trial, Ms. Grant was asked several times could she

recognize anyone on the surveillance video:

9. Q: Did you recognize anyone in that surveillance video?

(TR. 2685) .

11. A: I recognized Chico because his face. That's all they

were showing was him. (TR. 2686).

14. Q: When you looked at the surveillance video did you

recognize anyone else?

16. A: No. (TR. 2713).

17. Q: And in that surveillance video, you remember seeing you

son, right?

19. A: No. I didn't never seen my son on the surveillance

video. (Emphasis added).

Whereafter, the Prosecutor improperly mischaracterized the

witness's testimony about the identification of her son on the

surveillance video:

(TR. 3850:) "What.. .Hall... doesn' t bank on is his mom

recognizing him. She recognizes him as her son..."

(TR. 3851:). This may have been the worst day of her

life [for Hall's mother] because she sees him not only

once, she sees him again. For two weeks she sees

nothing but these videos on television because she is

watching the news and she is worried..." (TR. 3851:)"

This Hall, Milton Hall walking by. Mom saw this

too..." (TR. 3865:) w [b]ecause Mom [sic] made an

Id..." (TR. 3871:) "Hall's mother saw him on the video

tape..." (TR. 3769:) "You don't have to be a momma to

recognize Milton Hall [in the picture]"2

The subject of Ms. Grant-identifying her son on

surveillance video was material to the State's case despite DNA

evidence. The United States Supreme Court has held that [a]

witness identification is material to the State's case. See

Moore v. Illinois, 92 S. Ct. 2562, 408 U.S. 786, Id., at 2573.

This Court has also held that "A material witness is one

who possesses information going to some fact affecting the

merits of the case and about which no other might testify".

Wingate v. Mach, 117 Fla. 104, 157 So. 421 (Fla. 1934).

Affirmatively, Ms. Grant was the only witness who could

testify whether or not her son was on the surveillance video.

Petitioner would further submit that Prosecutorial misstatement

of evidence is reversible error by State and Federal law.

Please see: Robinson v. State, 989 So.2d 747 (Fla. 2nd DCA 2008)

(misstated witness testimony-Reversed); Miller v. State, 782

2 Although Petitioner presented 6 excerpts from the trial transcript, only two were properly objected to andoverruled. (TR. 3850; 3871). Inasmuch, this Court should consider the accumulative affect of all the impropercomments, as that "the judicial process has been compromised and the resulting convictions and sentencesirreparably tainted". Id., at 7. Ruiz v. State. 743 So.2d 1 (Fla. 1999); in accord, Lewis v. State. 780 So 2d 125 (Fla3rd DCA 2001). ' v '

So.2d 426 (Fla. 2nd DCA 2001) (mischaracterized witness

testimony-Reversed); Miller v. Pate, 87 S. Ct. 785 (1967)

(misrepresented evidence-Reversed) and U.S. v. Carter, 236 F.3d

777 (6th Cir. 2001) (misstated witness testimony-Reversed).

Accordingly, whether it is State or Federal Courts, it is

well-established law that prosecutors may not misstate,

misrepresent or mischaracterize any part of the evidence

presented at trial. The Third District reasoning that "the

asserted error, xif any' was harmless beyond a reasonable doubt"

is clearly erroneous in comparison to Petitioner's error, and

the similar errors presented in the cases above. The District

Court findings does nothing more than track the language

necessary under the DiGuilio standard but does not apply the

harmless error standard with impartiality.

Article I, Section 2, Florida Constitution under Florida

law, Equal Protection requires persons of similar situations be

treated similar. See Duncan v. Moore, 754 So.2d 708 (Fla.

2000) .

The United States Constitution provides that no State shall

deny to any person within its jurisdiction the equal protection

of the law. U.S. Constitutional Amend. 14 §1, Jimenez v.

Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L.Ed.2d 363 (1974).

Affirmatively, Petitioner states that he is being denied

the minimal amounts of due process and equal protection

guaranteed him by the Florida Constitution, Art. I, §2, and the

equal protection of law guaranteed by the United States

Constitution, Amend. 14 under the harmless error standard

established in Chapman v. California, 87 S. Ct. 824, and State

v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

CONCLUSION

WHEREFORE, based upon the above-mentioned facts, arguments

and citations of authority, Petitioner prays that this Honorable

Court invokes its jurisdiction and properly corrects the Third

District Court's misapplication of law which has been

erroneously applied to Petitioner's case, where Petitioner

herein has undoubtedly demonstrated that the error asserted

"affected" or, at least, "contributed" to the jury's guilty

verdict. DiGuilio.

It is so.

UN-NOTARIZED OATH

UNDER PENALTIES OP PERJURY, pursuant to §92.525, Fla. Stat.

I hereby certify that I have read the foregoing instrument and

all facts contained herein are true and correct.

Ha

Milton Hall, DC# M00571

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the

foregoing instrument has been placed in the hands of prison

officials and furnished to:

Clerk of Court

Florida Supreme Court Building

500 South Duval Street

Tallahassee, FL 32399-1925

Office of Attorney General

444 Brickell Avenue Suite 650

Miami, FL 33131

By handing U.S. Mail on this the

/a b$MATC\/ , 2012.

day of

Q

MILTON HALL, DC# M00571

LAKE CORR. INST.

19225 U.S. HWY 27

CLERMONT, FL 34715

11