Rodney Calabro v. State of Florida

SC07-1105

THE NEXT CASE IS CALABRO V.
STATE.
CALABRO, PARDON ME, I'VE BEEN
CORRECTED.

IT'S NOT THAT YOU OFFENDED THEM,
BUT I THINK OUR FIRST CASE HAD
SOME INTEREST.
[LAUGHTER]

I HOPE NOT, YOU KNOW.

JUST TEASING WITH YOU.
ANYWAY, MAY IT PLEASE THE
COURT, MY NAME IS CHARLES WHITE,
I'M HERE REPRESENTING RODNEY
CALABRO AS THE PETITIONER.
CAN YOU ADDRESS TO ME WHAT IS
A THRESHOLD ISSUE?
I KNOW I'M COMING RIGHT OFF THE
BAT TO YOU.
ON THE ISSUE OF CONFLICT, I JUST
DON'T SEE WHETHER YOU'RE RIGHT
OR WRONG IN THIS CASE THAT THE
DECISION BELOW REALLY CONFLICTS
WITH ANY OTHER CASE IN FLORIDA.
IT SEEMS LIKE IT'S A UNIQUE
CIRCUMSTANCE THAT I DON'T SEE IN
ANY OTHER CASE.
WELL, I THINK THAT IT
CONFLICTED WITH DAVIS.
WELL, DAVIS THERE WAS A
NEGOTIATION WITH THE STATE ON A
PLEA, AND, IN FACT, THE JUDGE
WAS INVITING PLEA NEGOTIATIONS.
I THINK THAT'S A TOTALLY
DIFFERENT KIND OF SCENARIO THAN
WHAT WE HAVE HERE WHERE AT THE
ARRAIGNMENT THE DEFENDANT JUST
BLURTED OUT THAT HE WAS GUILTY.
WELL, I THINK THAT THE WAY
THAT THIS WAS DIVIDED, THIS
ISSUE WAS DIVIDED IN STEVENS WAS
ADOPTING THAT FEDERAL CASE.
ROBERTSON WAS WHETHER OR NOT THE
DEFENDANT WAS MAKING,
SUBJECTIVELY MAKING AN OFFER TO
NEGOTIATE.
AND THEN AT THAT POINT YOU
DECIDE WHETHER OR NOT THERE WAS
A REASONABLE, THAT WAS A
REASONABLE ASSERTION.
IN DAVIS THERE WAS A
NEGOTIATION, YES, THAT WAS GOING
ON, BUT WHAT WE WERE TALKING
ABOUT IN THE LARGER PICTURE WAS
NOT THAT THERE WAS A NEGOTIATION
GOING ON SPECIFICALLY, BUT THAT
THERE WAS BASICALLY A REQUEST
FOR A PLEA.
I MEAN, WE HAVE TRIAL COURTS,
COURTS SET IN MIAMI-DADE COUNTY,
THEY CALL IT DIFFERENT THINGS IN
DIFFERENT COUNTIES.
IN PALM BEACH COUNTY THEY CALL
IT --
THEY'LL HAVE THE PERSON COME
BEFORE THE COURT AND SAY, WELL,
ARE YOU GOING TO PLEAD GUILTY,
NOT GUILTY?
ARE YOU GOING TO ASK FOR A
CONTINUANCE?
WHAT'S GOING ON?
IN THOSE CONTEXTS THE DEFENDANT
IS BASICALLY BEING ASKED TO MAKE
A PLEA.
HERE WE'RE TALKING ABOUT
ARRAIGNMENT.
EXACTLY.
WHERE A DEFENDANT IS BEING ASKED
TO MAKE A PLEA.
THAT WAS MY POINT.
UNDER RULE 3.1 --
DID ANYBODY ASK THE DEFENDANT
IF HE WANTED TO PLEA?
FIRST OF ALL, I'M GETTING TO THE
CONFLICT.
IT SEEMS TO ME IT'S TOTALLY
DIFFERENT WHERE THE STATE HAS
NEGOTIATED, WHERE THE JUDGE IS
NEGOTIATING, AND THE APPELLATE
COURT SAYS THAT THE DEFENDANT
HAD A REASONABLE BELIEF THAT
THESE STATEMENTS WERE MADE IN
THE CONTEXT OF NEGOTIATIONS.
DAVIS MAY VERY WELL HAVE BEEN
WELL DECIDED, BUT THIS IS A
COMPLETELY DIFFERENT
CIRCUMSTANCE WHERE NOBODY HAD
BROUGHT UP THE ISSUE OF
NEGOTIATIONS AT THE TIME THAT
THE DEFENDANT MADE THE
STATEMENT.
SO CAN'T THOSE TWO CASES BE
RECONCILED?
BUT PEOPLE HAD BROUGHT UP THE
IDEA OF A PLEA.
AND THAT'S REALLY THE KEY HERE.
BECAUSE THE DEFENDANT AFTER
SPENDING -- APPARENTLY, HE
THOUGHT SPENDING THREE WEEKS IN
JAIL WAITING FOR HIS ARRAIGNMENT
WAS A LONG TIME, AND HE WAS
FRUSTRATED ABOUT THIS.
HE'S SITTING IN THE COURTROOM
WATCHING EVERYBODY COME IN AND
PLEA NOT GUILTY OR GUILTY.
HE'S SEEING THIS IS A FORUM FOR
PEOPLE TO COME FORWARD AND ENTER
A PLEA.
AND HE IS, HE GETS UP, AND HE
SAYS, WAIT A SECOND --
IS THERE ANY EVIDENCE IN THIS
CASE, WAS THIS FELONY
ARRAIGNMENT?
YES, IT WAS A FELONY.
WAS THERE ANY EVIDENCE THERE
HAS BEEN FELONY GUILTY PLEAS
ENTERED THAT WERE NOT BASED ON
PRIOR NEGOTIATIONS BETWEEN THE
STATE AND THE PUBLIC?
BEAUTIFUL POINT.
YOU SEE, WE NEVER GOT TO THAT
POINT, AND THE REASON WAS
BECAUSE THE STATE CONCEDED THAT
FIRST INITIAL POINT ON THE FIRST
STATEMENT.
THEY SAID HE SUBJECTIVELY
OFFERED TO PLEAD GUILTY.
I'M SAYING YOU WERE SITTING
HERE REPRESENTING THAT THIS WAS
WHAT WAS HAPPENING, AND I'M
SAYING IS THERE ANYTHING IN THE
RECORD THAT DEMONSTRATES THAT
THIS WAS WHAT WAS HAPPENING?
NO.
NO, THERE WAS NOT, JUSTICE.
HOWEVER, THE REASON FOR THAT, IN
MY OPINION, IS BECAUSE THE STATE
CONCEDED THAT HE WAS
SUBJECTIVELY MAKING A PLEA
OFFER.

I'M NOT SURE --
THEY TRIED TO DIVIDE THE
STATEMENTS INTO TWO.
WOULD YOU GO BACK FOR A
MINUTE BECAUSE HAVE YOU ANSWERED
JUSTICE CANTERO'S -- JUSTICE
CANTERO HAS RAISED AN ISSUE WITH
REFERENCE TO OUR JURISDICTION.
THE JURISDICTION WE'RE
OPERATING ON UP TO THIS POINT IS
BASED ON CONFLICT WITH THESE
SEVERAL DECISIONS FROM THE OTHER
DISTRICT COURTS OF APPEAL.
I DON'T --
I WOULD BE HAPPY TO TRY --
WE SEEM TO BE GOING RIGHT --
I REALIZE THAT YOU'RE GOING TO
MAKE ARGUMENTS, BOTH OF YOU,
ABOUT THE MERITS OF THE CASE.
BUT COULD YOU MORE DIRECTLY
ADDRESS HIS QUESTION IN TERMS
OF, YOU KNOW, WHERE'S THE
CONFLICT?
AND I'M NOT IMPLYING THAT THERE
ISN'T, I'M ASKING YOU, THOUGH,
TO RESPOND TO HIS QUESTION.
THAT'S WHAT HE'S ASKING YOU.
WOULD YOU MORE POINTEDLY
DESCRIBE WHAT YOU BELIEVE TO BE
THE CONFLICT IN THE DECISIONS
THAT HAVE BEEN CITED IN THE
SEVERAL OTHER DISTRICT COURTS
AND THIS DECISION?
I BELIEVE THAT THE THRUST OF
THE THIRD DCA'S OPINION AND THE
STATE'S ARGUMENT IN THIS CASE IS
AN UNSOLICITED PLEA OF GUILTY IS
NOT COVERED BY THIS RULE.
AND CONSEQUENTLY, THAT'S HOW I
EXPLAINED IT IN MY BRIEF ON THE
MERITS.
THAT'S THE THRESHOLD ISSUE.
NOW, AS TO THAT ISSUE, THAT
POSITION IS IN CONFLICT WITH THE
McCRAY CASE AND THE RUSSELL
CASE.
ALL THREE OF THOSE DEALT WITH
UNSOLICITED PLEA OFFERS THAT
WERE FOUND TO HAVE BEEN
SUBJECTIVELY MAKING PLEA OFFERS.
IT WAS THE FACT THEY WERE
UNSOLICITED --
WELL, THOSE ARE CONCERN
LETTERS THAT WERE SENT TO THE
STATE, CORRECT?
RIGHT.
AND THOSE WERE ALL LETTERS
WHERE THE DEFENDANT OFFERED TO
PLEAD IF THE STATE WOULD GIVE
HIM A CERTAIN SENTENCE.
CORRECT.
CLEARLY, PLEA NEGOTIATIONS.
BUT THEY WERE, THE THIRD
DISTRICT COURT OF APPEALS AND
THE STATE MADE A BIG DEAL ABOUT
WHETHER THE STATE WAS TAKING
OFFERS, OKAY?
THAT IF THE STATE WASN'T TAKING
OFFERS, THEREFORE, AN
UNSOLICITED OFFER WOULD NOT BE
APPLIED, AND THEY CITED THE
OWENS CASE AND SOME OF THE OTHER
CASES FOR THAT PROPOSITION WHERE
THE DEFENDANT IN OWENS, I
BELIEVE IT WAS OWENS, OR I DON'T
WANT TO BE INCORRECT HERE, OWENS
WAS THE -- NO, IT WAS BOTTOSON.
THAT WAS THE CASE WHERE THE
DEFENDANT CALLED THE MINISTERS
INTO THE JAIL, AND HE SAID, I
WANT TO PLEAD GUILTY.
I WANT TO NEGOTIATE A PLEA
BARGAIN.
HERE'S SOME LETTERS TO THE
STATE.
CONVEY THOSE TO THE STATE.
AND THOSE WERE FOUND TO HAVE
BEEN ON THE PRINCIPLE THAT --
AND IT WAS CITED BY THE STATE
AND THE COURT FOR THE
PROPOSITION THAT THOSE WERE NOT,
THEY COULD BE IGNORED BECAUSE
THEY WERE UNSOLICITED OFFERS,
AND THEY WEREN'T MADE TO THE
STATE.
CORRECT ME IF I'M WRONG, IN
THESE OTHER THREE CASES WHERE
THERE WERE LETTERS SENT THE
CASES APPLIED ARE PRECEDENT AND
DECIDED IN THOSE CASES THE
DEFENDANT HAD A SUBJECTIVE
BELIEF THAT THESE WERE PLEA
NEGOTIATIONS AND WAS REASONABLE
IN THAT SUBJECTIVE BELIEF.
PRECISELY.
CORRECT?
AND IN THIS CASE THE COURT ALSO
APPLIED THE SAME CASES AND
DECIDED THE DEFENDANT DID NOT
HAVE A REASONABLE BELIEF THESE
WERE PLEA NEGOTIATIONS.
THE CASES I MENTIONED WERE
CITED IN MY BRIEFS TO THE THIRD
DCA, BUT THEY WERE NOT
REFERENCED OR DISCUSSED IN THE
OPINION, AND NEITHER WAS DAVIS.
THE CASES THAT THE STATE BROUGHT
UP, THE BOTTOSON CASES, THE
RICHARDSON, THE OWENS, THOSE
WERE DISCUSSED IN THE OPINION.
THAT'S THE REASON I SOUGHT THE
JURISDICTION OF THIS COURT
BECAUSE THE VERY PERTINENT CASE
LAW --
IT'S YOUR POSITION THAT THOSE
CASES STAND FOR THE PROPOSITION
THAT NOTHING NEED HAVE GONE ON
BEFORE WITH REFERENCE TO
NEGOTIATION TO PRECLUDE THE
ADMISSION OF A FIRST OFFER, FOR
INSTANCE, BY AN ACCUSED PERSON?
EXACTLY.
AND THAT THE STATUTE EXCLUDES
THAT EVEN THOUGH IT IS THE FIRST
TIME NEGOTIATIONS ARE MENTIONED,
THAT NOTHING HAD TO HAPPEN AND
THAT THOSE OTHER CASES STAND FOR
THAT PROPOSITION.
EXACTLY.
AND I THINK THAT'S WHY THE STATE
CONCEDED DOWN AT THE TRIAL
LEVEL, AND WHY THERE WAS NO
RECORD MADE ABOUT WHAT HAPPENS
IN FELONY ARRAIGNMENT COURT OF
MIAMI-DADE COUNTY IN TERMS OF
PEOPLE COMING IN AND PLEADING
GUILTY OR OFFERING TO PLEAD
GUILTY OR MAKING PLEA OFFERS OR
PLEA DISCUSSIONS AND THINGS OF
THAT NATURE WHICH DOES HAPPEN
EVERY DAY, BUT THAT WASN'T MADE
PART OF THE RECORD, BECAUSE
THERE WAS NO NEED FOR IT.
AND IN THIS CASE THE FIRST
STATEMENT WAS, I WANT TO PLEA?
IT WASN'T, HEY, I'M GUILTY,
SENTENCE ME.
IT WAS, I WANT TO PLEA?
RIGHT.
HE WAS COMPLAINING TO HIS
LAWYER --
I UNDERSTAND THAT.
HIS FIRST STATEMENT WAS, I WANT
TO PLEA.
I WANT TO PLEAD GUILTY, YES.
THAT WAS HIS FIRST STATEMENT.
AND, YOU KNOW, THAT WAS HIS
FIRST COMMENT.
OF COURSE, THE POSITION THAT WAS
TAKEN --
AND THEN LATER ON WHEN THE
ACTUAL ADMISSION COMES IN DURING
A SUBSEQUENT STATEMENT --
RIGHT.
SO REALLY THE ISSUE IS
WHETHER THAT BY INITIATING IT IN
THAT WAY DOES IT COME WITHIN
THOSE OTHER CASES.
I'M SORRY?
IN INITIATING IT THAT WAY, HE
WALKS IN AND SAYS, I WANT TO
PLEA.
IS THAT SUFFICIENT TO INVOKE
THOSE OTHER CASES?
YES, I BELIEVE IT IS, YOUR
HONOR.
-- I'M GUILTY, SENTENCE ME.
CORRECT?
CORRECT.
THAT'S REALLY WHAT IT COMES
DOWN TO.
AND THEN OUR POSITION WAS
THAT THE VERY, VERY BRIEF
DISCUSSION THAT OCCURRED ON THE
RECORD WAS ALL PART OF THE SAME
CONVERSATION.

DID YOU, DID THE CONTEXT,
LIKE, TAKE BOTTOSON, AND IN
BOTTOSON THE STATEMENTS WERE
MADE TO THE MINISTER.
DO YOU DISTINGUISH THAT, I MEAN,
FROM CIRCUMSTANCES HERE, THAT IS
THAT IT IS, THAT WE HAVE TO LOOK
AT THE FACT THAT THIS IS A
ARRAIGNMENT, AND WE ALSO HAVE TO
LOOK AT THE FIRST STATEMENT THAT
WAS MADE THAT THE STATE, AS YOU
SAY, CONCEDED IT WAS NOT
ADMISSIBLE.
I GUESS, LET ME SAY IT THIS WAY,
IF JUST OUT OF NOWHERE THE
DEFENDANT SAYS, I JUST WANT YOU
TO KNOW, JUDGE, I'M GUILTY,
WOULD YOU AGREE -- I MEAN, THAT
IN ITSELF IS CLEARLY NOT
ANYTHING THAT HAS TO DO WITH A
PLEA NEGOTIATION.

THAT, BY THE WAY, IN THAT
CONTEXT, YES, I WOULD AGREE WITH
THE COURT.
SO WE HAVE TO LOOK AT WHAT
YOU WOULD SAY IS THAT THE BEING
AN ARRAIGNMENT, AND IT BEING
THAT THE FIRST STATEMENT BEING
MADE, CORRECT?

YES.
IF THAT WAS --
WITH THAT IN MIND, YOU KNOW,
AND I VOTED TO TAKE THIS ON
CONFLICT, THIS DOES SEEM
DIFFERENT THAN THOSE ALL THE
OTHER CASES WHERE THERE'S JUST
THIS UNILATERAL LETTER THAT IS
BEING SENT TO THE, TO THE STATE
WHICH IS WHERE THAT PRONG TEST
IS NOT USED BECAUSE IT JUST
CLEARLY IS AN OFFER TO PLEA.
SO HOW DO, WHAT DOES THIS
CONFLICT DEAL WITH?
I THINK I UNDERSTAND WHAT THE
COURT IS SAYING, BUT THE
DISTINCTION YOU'RE MAKING -- BUT
BOTTOSON, IT WAS, THERE WAS AN
OFFER TO PLEA.
THE COURT FOUND THAT THERE WAS
AN OFFER TO PLEA.
HOWEVER, IT WAS NOT REASONABLE
FOR HIM TO CONSIDER THAT THIS
WAS AN OFFER TO PLEA BECAUSE IT
WAS MADE TO PEOPLE WHO WERE NOT
AGENTS OF THE STATE.
OR FOR THAT MATTER, THE COURT.
THEY WERE JUST MINISTERS THAT
CAME IN.
THE STATEMENT THAT WAS MADE THAT
WAS A ADMISSION, THE CONFESSION,
WAS MADE IN THE LETTERS.
SO, IN ESSENCE, WHAT HAPPENED
WAS THE MINISTERS CONVEYED THE
LETTERS TO THE STATE AND SAID,
HERE, HERE'S THE LETTERS.
THE PROSECUTOR GOES, OH,
WONDERFUL.
I HAVE A CONFESSION NOW.
IT REALLY COMES DOWN TO THE
QUESTION THAT IN FOLLOWING THAT
FIRST STATEMENT, I WANT TO PLEA,
IS IT NECESSARY OR DOES IT MAKE
A DIFFERENCE THAT THIS CASE IS
DIFFERENT THAT HE DID NOT SAY, I
WANT TO PLEA IN EXCHANGE FOR?
IS THAT WHAT MAKES A DIFFERENCE?
BECAUSE THAT REALLY SEEMS TO BE
THE ONLY REAL DIFFERENCE HERE,
IS THAT HE DID NOT OUTLINE HE'S
WANTING TO PLEAD GUILTY IN
EXCHANGE FOR SOMETHING, OR IF I
GET SOMETHING.
IS THAT WHAT MAKES IT DIFFERENT,
OR IS THAT DIFFERENT?
I THINK HE ASKED FOR A PLEA
AGREEMENT.
HE DIDN'T SAY WHAT.
I DON'T THINK THIS ONE SAID WHAT
HE WANTED.
LET ME JUST MAKE SURE HERE.
HE SAID, I'D LIKE TO AVOID THE
TRIAL AND HAVE SOME --
IT DOESN'T SAY WHAT.
DOES THAT MAKE, DOES THAT MAKE
THIS DIFFERENT?

WELL, HE WASN'T SPECIFIC
ABOUT WHAT HE WANTED, THAT'S FOR
SURE.
IN THE OTHER CASES --
IN THE OTHER CASES THERE WAS
MORE OF A, YOU KNOW, OF, AGAIN,
WE HAVE AT THE TRIAL LEVEL
APPARENTLY THE UNDERSTANDING WAS
THAT WHEN YOU ASKED FOR A PLEA
AGREEMENT OR A PLEA BARGAIN,
YOU'RE ASKING FOR A QUID PRO
QUO, AND THAT'S WHY I THINK,
THAT'S PROBABLY WHY -- I DID NOT
REPRESENT MR. CALABRO BEFORE, I
WAS APPOINTED --
SO YOU'RE SAYING IT SHOULD
NOT MAKE A DIFFERENCE --
EXACTLY.
BECAUSE THE CODE FOR PLEA
AGREEMENT IS LET'S BARGAIN,
LET'S TALK.
AGAIN, IF WE GET PAST THE
CONFLICT ISSUE, AND THIS WOULD
BE A QUESTION FOR THE ATTORNEY
GENERAL, WHAT BOTHERS ME ABOUT
ALLOWING STATEMENTS, AND THIS IS
JUST -- IS WHAT YOU SAID ABOUT
THE CONTEXT WHICH IS TWO
CONTEXTS.
FIRST OF ALL, WE DON'T KNOW, YOU
KNOW, WHAT WAS HAPPENING IN
THOSE LAST TWO CASES WHERE
MR. CALABRO WAS ALSO IN THE
COURTROOM AND WHETHER PLEA
THINGS WERE GOING ON ALL AROUND
HIM, SO THAT, AGAIN, MAKES IT
MORE REASONABLE WHAT WAS GOING
ON.
THE OTHER THING IS THAT HE KEEPS
ON COMPLAINING ABOUT HAVING BEEN
IN JAIL FOR THREE WEEKS,
AND NO ONE COMING TO SEE HIM,
AND THE STATE OF MIND BEING
SUCH.
AND IS THERE ANY OTHER POLICY
ARGUMENT THAT WAS MADE THAT IT
IS, IT DOESN'T LOOK LIKE THE
PUBLIC DEFENDER WAS GOING, YOU
KNOW, GOING OVER TELLING HIM
SHUT YOUR MOUTH, YOU KNOW?
[LAUGHTER]
WHAT ARE YOU DOING?
YOU KNOW, WE NEED TO TALK.
SO THAT THIS WAS REALLY NOBODY
AT THE TIME REALLY THOUGHT MUCH
ABOUT THIS OTHER THAN THIS IS A
GUY THAT HAD BEEN WAITING IN
JAIL AND REALLY WANTED TO GET
THIS MATTER OVER WITH.
WAS ANYTHING, AGAIN, MADE ABOUT
THAT, THAT THAT, TO ME, MAKES IT
ALMOST LIKE IT'S A BAD POLICY TO
ALLOWING THIS KIND OF STATEMENT
IN.

WELL, IT'S INTERESTING THAT
YOU MENTION THAT BECAUSE MR. --
THERE WAS SOME REFERENCE TO THIS
IN THE HEARING THAT TOOK PLACE,
THE EVIDENTIARY HEARING.
THERE WASN'T THAT MUCH
CONSIDERATION IN TERMS OF THE
JUDGE, BUT THERE WAS AN ISSUE
MR. CALABRO WAS VERY OFFENDED BY
THE FACT THAT HE DIDN'T FEEL HE
WAS PROPERLY REPRESENTED, AND HE
HAD TO SAY SOMETHING BECAUSE,
YOU KNOW, HERE HE WAS, HE HADN'T
SEEN HIS LAWYER IN THREE WEEKS.
SUDDENLY HE GETS TOLD SOMETIME
FOUR MONTHS FROM NOW IS WHEN
YOUR TRIAL DATE'S GOING TO BE,
AND HE FELT HIS RIGHT TO COUNSEL
WAS BEING TRAMPLED ON HERE, AND
HE WANTED THIS THING RESOLVED.
HE WAS NOT BONDED?
I MEAN, HE WOULD HAVE HAD TO
REMAIN IN JAIL?
YES.
HE WAS, THIS WAS A SECOND-DEGREE
MURDER CHARGE, AND HE WAS
INCARCERATED, AND, YOU KNOW, I
DON'T KNOW IF -- I HONESTLY
DON'T KNOW IF THE STATE WAS
CONTEMPLATING FILING NOTICE OF
INTENTION.
SOMETIMES THEY HOLD YOU ON A
SECOND-DEGREE MURDER CHARGE --
SO HE WAS CLEARLY UPSET WITH
HIS COUNSEL AND WHAT ELSE AS FAR
AS ANY OTHER -- NO BROWN WAS
RAISED THAT THIS WAS ANY OTHER
BASIS FOR SUPPRESSING THIS.
HE WASN'T OFFERED A PLEA, IS
THAT CORRECT?
THAT WAS THE MAIN ISSUE THAT
WAS RAISED.
THERE WAS SOME REFERENCE MADE TO
THE FACT THAT, YOU KNOW, IT
MIGHT HAVE BEEN A SIXTH
AMENDMENT VIOLATION.
I THINK I WAS ASKED BY THE PANEL
ON THE THIRD DCA ABOUT THAT.
I MENTIONED THE SIXTH AMENDMENT.
I SAID THERE WAS A POTENTIAL,
YOU KNOW, INEFFECTIVENESS IN A
SENSE ISSUE OF A MAN WHO'S IN
JAIL FOR A SERIOUS CHARGE WHO
HASN'T RECEIVED ANY ADVICE, ANY
COUNSEL AT ALL, AND NOW HE'S IN
FRONT OF A JUDGE, AND THIS IS
HIS ONLY CHANCE TO SORT OF,
LIKE, LAY IT OUT AND SAY WHAT HE
WANTS TO HAVE DONE.
AND TO HAVE THIS, NOW, COME, YOU
KNOW, BACK TO HIM, WELL, IN THE
CONTEXT OF ALL THIS, YOU KNOW,
THE PANIC THAT YOU WERE
UNDERGOING, NOW WE'RE GOING TO
SAY A STATEMENT THAT YOU MADE
DURING THAT PROCESS IS NOW GOING
TO BE SUBSTANTIVE EVIDENCE OF
YOUR GUILT AT TRIAL.
SO WE'RE MAYBE LOOKING AT AN
INEFFECTIVE -- BUT THAT HASN'T
BEEN RAISED AT THIS POINT.
WELL, IT WAS MENTIONED, I
BELIEVE, AT THE HEARING, AND I
CAN TELL THE COURT THAT I DON'T
WANT TO GO TOO FAR AFIELD, BUT
IN ANSWER TO YOUR QUESTION, I
HAVE A LOT OF CORRESPONDENCE
WITH MR. CALABRO WHERE HE HAS
EXPRESSED THAT CONCERN.
IN FACT, HE WAS VERY ANGRY AT ME
FOR NOT MAKING MORE OF AN ISSUE
OF IT IN MY BRIEF.
PERHAPS HE WAS RIGHT, AND I WAS
WRONG.
YOU'RE ABOUT OUT OF TIME.
DO YOU WANT TO SAVE SOME TIME
FOR REBUTTAL?
THANK YOU.

USE YOUR TIME AS YOU WISH.
YES, YOUR HONOR.
GOOD MORNING.
ROLANDO SOLER, ASSISTANT
ATTORNEY GENERAL HERE ON BEHALF
OF THE STATE.
THERE IS NO CONFLICT
JURISDICTION BECAUSE THE COMMON
DENOMINATOR IN ALL OF THE CASES
RELIED UPON BY CALABRO IS THAT
THE DEFENDANT WAS SEEKING A
CONCESSION FROM THE STATE, AND
THAT'S THE KEY TO THIS CASE,
NEGOTIATIONS.
SO THAT'S THE DIFFERENCE, IT
DOESN'T HAVE THE WORDS AFTER IT,
"IN EXCHANGE FOR SOMETHING."
THAT'S CORRECT, YOUR HONOR.
LET ME, YOU KNOW, I'M HAVING
SOME DIFFICULTY HERE BECAUSE I
WANT TO READ TO YOU WHAT THE
STATUTE SAYS.

YES.

AND I'M TAKING OUT THE PART
THAT WOULDN'T, YOU KNOW, BUT I'M
JUST GOING TO READ THE WORDS OF
THE STATUTE.
IT SAYS EVIDENCE OF AN OFFER TO
PLEAD GUILTY OR NOLO CONTENDERE
TO THE CRIME CHARGED FOR ANY
OTHER CRIME IS INADMISSIBLE.

YES, YOUR HONOR.

NOW, I'M HAVING A LOT OF
DIFFICULTY, YOU KNOW, THERE'S A
LOT OF STATUTES WE STRUGGLE WITH
IN TERMS OF AMBIGUITY OR WHAT
DID THE LEGISLATURE MEAN OR
WHATEVER, AND THIS SAYS EVIDENCE
OF AN OFFER TO PLEAD GUILTY OR
OF NOLO CONTENDERE TO THE TIME
CHARGED OR ANY OTHER CRIME IS
INADMISSIBLE.
THAT'S CORRECT, YOUR HONOR.
NOW, IT SEEMS TO ME THE PLAIN
MEANING OF THAT COVERS WHAT THIS
FELLA DID.
HE WAS OFFERING TO PLEAD GUILTY
OR NOLO CONTENDERE.
IT'S CLEAR THAT LATER HE WAS
TALKING ABOUT SOME KIND OF A
DEAL BEING WORKED OUT, BUT HOW
DO WE AVOID THE PLAIN MEANING OF
THOSE WORDS THAT SAYS THAT A
STATEMENT LIKE THIS IS
INADMISSIBLE?
AND THAT'S WHAT WAS HELD IN
THOSE OTHER CASES.
IT SEEMS TO ME THERE IS A
BLATANT CONFLICT WITH WHAT THE
THIRD DISTRICT HAS DONE, BECAUSE
THEY HAVEN'T APPLIED THOSE PLAIN
WORDS.
YES, YOUR HONOR.
THE STATE MAINTAINS THAT THESE
ARE TWO SEPARATE STATEMENTS, AND
WITH REGARD TO THE FIRST
STATEMENT, CALABRO SAYS HE WANTS
A PLEA AGREEMENT.
LET'S STOP RIGHT THERE.
YES.
AS THE STATE REPRESENTATIVE
CANDIDLY DID IN THE TRIAL
COURT --
CORRECT.
ARE YOU SAYING THAT THAT
FIRST STATEMENT CLEARLY IS
INADMISSIBLE?
CORRECT.
UNDER THIS LANGUAGE?
YES, YOUR HONOR.
WELL, YOU KNOW, WE VERY MUCH
APPRECIATE -- WE DON'T ALWAYS
SEE THAT KIND OF CANDOR, YOU
KNOW, HERE.
BUT IT SEEMS LIKE AFTER THAT,
THAT THAT'S JUST WHAT'S GOING
ON.
IT'S CLEAR THAT HE WANTS TO, YOU
KNOW, HE DOESN'T WANT TO STAY IN
JAIL, HE WANTS TO GET IT OVER
WITH.
BUT WHAT WE DON'T HAVE HERE,
WHICH I WOULD CONTRAST WITH THIS
AND WOULD THINK THAT A DEFENDANT
REALLY HAS NAILED HIMSELF, IF
THE DEFENDANT, YOU KNOW, IN THE
SAME CONTEXT HERE AFTER THE
LAWYER SAYS, ENTER A PLEA OF NOT
AND REQUEST A JURY TRIAL OR THE
USUAL WHATEVER THE STANDARD
THING IS IF THE DEFENDANT SAID,
NO, ABSOLUTELY NOT, I'M GUILTY,
AND I WANT TO ENTER A PLEA OF
GUILTY, SEEMS TO ME A DEFENDANT
LIKE THAT WOULD HAVE NAILED
HIMSELF.
THAT IS THAT, YOU KNOW, TALKING
ABOUT AN OFFER OR WHATEVER KIND
OF THING.
BUT WHATEVER WAS SAID AFTERWARDS
IN THAT COLLOQUY JUST, IT SEEMS
TO ME, ELABORATES MORE ON THE
FACT THAT HE WANTS TO WORK OUT
SOME KIND OF A DEAL AND THAT
THAT IS EVEN CLEARER IN TERMS
THAT IT'S IN THE CONTEXT OF
TRYING TO WORK OUT, CAN'T WE
WORK OUT SOME KIND OF A DEAL?
ISN'T IT?

WELL, THERE ARE -- IN
INTERPRETING THE RULE, THIS
COURT HAS REPEATEDLY AND
CONSISTENTLY HELD THAT THE
STATEMENT IS INADMISSIBLE ONLY
IF IT IS MADE IN BILATERAL
NEGOTIATIONS WITH THE STATE.
I MEAN, WE HAVE A LIMITED
ABILITY WHEN THE PLAIN LANGUAGE
OF THE RULE SAYS AN OFFER IS NOT
ADMISSIBLE.
SO WHETHER IT'S THE FIRST ONE OR
THE SECOND ONE --
BUT THE SECOND ONE,
RESPECTFULLY, YOUR HONOR, IS NOT
AN OFFER TO PLEAD GUILTY, IT'S A
CLEAR CONFESSION.
IT'S CLEARLY A CONFESSION.
IT'S NOT AN OFFER TO PLEAD
GUILTY.
THE STATE MAINTAINS THESE ARE
TWO SEPARATE STATEMENTS AND DOES
NOT SEEK THE ADMISSION OF THE
FIRST STATEMENT BECAUSE THAT
FIRST STATEMENT COULD BE
CONSTRUED AS BEING AN INVITATION
TO ENTER INTO PLEA NEGOTIATIONS.
AND THAT WOULD BE PROTECTED BY
THE RULE.
THE PROBLEM IS THAT CALABRO
SAYS, I WOULD LIKE AN AGREEMENT,
AND THEN HE MAKES A CONFESSION.

ISN'T THERE SOME LANGUAGE
THAT JUSTICE ANSTEAD REFERS
TO --
OH, YEAH.
HIS LAWYER SAID --
SO TOLD HIM TO DO THAT, AND
THIS OCCURRED AFTER.
CORRECT.
WHAT ALL DID HE TELL HIM?
TOLD HIM TO STAND MUTE, GET A
TRIAL?
WELL, THE LAWYER WAS, HIS
ATTORNEY WAS ADDRESSING THE
COURT.
HE SAID, STAND MUTE, DEMAND
DISCOVERY.
THERE YOU GO.
THAT'S WHAT HE SAID, DEMAND
DISCOVERY.
WHAT ELSE?
TRIAL BY JURY.
EXACTLY.
SO THE STATEMENT YOU WANT TO USE
COMES AFTER THAT.
YES.
THERE WAS DIALOGUE BETWEEN
STATEMENT, AND THEN HE MAKES A
CONFESSION.
AND SO --
CAN I GO BACK TO THIS, AND I
GUESS IT'S REALLY -- FIRST OF
ALL, THE PUBLIC DEFENDER WAS
JUST BEING APPOINTED.
HE SAID, STAND MUTE.
HE DOESN'T SAY YOU AGREE TO THE
DEFENDANT, YOU KNOW, KEEP YOUR
MOUTH SHUT, I'M REPRESENTING YOU
NOW.
I DIDN'T EVEN KNOW WHAT THE
STAND MUTE MEANT IN PLEADING
NOT, BUT THAT MUST BE --
IT'S IN THE RULING.
OKAY.
AND THEN THE GUY STARTS WITH, I
NEED AN EARLIER DATE.
I WANT TO GET THIS OVER WITH.

rodney calabro v state of florida
may7 2008 (second part)
INCARCERATION BUT THAT IS I
JUST, THAT MUST BE THE --
IT IS IN THE RULING.
OKAY.
I -- AND, THEN, THE GUY
STARTS WITH I NEED AN EARLY
DATE, I WANT TO GET THIS OVER
WITH.
I'D JUST LIKE TO AVOID TRIAL
AND GET SENTENCED ON THIS
YOU JUST -- YOU KNOW, THE
DEFENSE LAWYER DOESN'T EVEN
YOU KNOW HE IS JUST -- HE
DOESN'T SAY ANYTHING.
THAT'S THE POINT.
THE JUDGE IGNORES IT
FOUR. WEEKS OH, REPORT THEN
GOES I KNOW THIS IS UNUSUAL,
BUT I'M GUILTY OF THIS AND
THEN GOES AND THEY KEEP ON
IGNORING THE JUDGE, EVEN
IGNORED IT, SAYS LISTEN THIS
IS THE FIRST TIME I APPOINTED
HIS GENTLEMAN TO
REPRESENT YOU, SUPPOSEDLY --
THERE WAS -- AND IT IS SO
CLEARLY IN THE CONTEXT OF
TWO THINGS WHICH MAKES -- TO ME
IS THAT HE IS UPSET THAT
NOBODY HAD EVER COME TO SEE
HIM BEFORE.
HE DOESN'T WANT TO SIT IN
JAIL.
HE IS OFFERING TO PLEAD
GUILTY, BECAUSE HE WANTS TO
GET THIS THING OVER WITH AND
HOW WE COULD IGNORE THE
FIRST STATEMENT AND SAY JUST
LOOK AT THE SECOND STATEMENT
IS WHAT IS TROUBLING ME.
YES, YOUR HONOR, I BELIEVE
THE CASE THAT THE RULE
PROTECTS NEGOTIATIONS, ALL OF
THIS COURT'S CASES HAVE
ALWAYS HELD THAT A STATEMENT
IS IN ADMISSION ONLY IF MADE
DURING BILATERAL
NEGOTIATIONS WITH THE STATE.
ISN'T THAT WHERE -- THAT
IS WHERE THE CONFLICT COMES UP
ALL THE OTHER CASES, FOURTH,
SECOND, FIRST, THERE WERE NO
NEGOTIATIONS GOING ON, THE
LAWYER, I MEAN THE
DEFENDANT, PROBABLY WITHOUT
LAWYER'S KNOWLEDGE SENT THIS
UNSOLICITED LETTER THEY SAID
WE ARE NOT ALLOWING THAT,
WOULDN'T WE HAVE TO
DISPROVE IF IT HAS TO BE
IN THIS COURSE OF
NEGOTIATIONS, WOULDN'T WE
HAVE TO DISPROVE THOSE
OTHER CASES?
IF -- IN THE COURSE.
TO APPROVE WHAT THE THIRD
DISTRICT HAS SAID HERE --
IF
IN THE COURSE OF
NEGOTIATIONS, BUT THERE WE --
NEGOTIATION BY DEFINITION
NEGOTIATION SEEKS QUID PRO
QUO.
I THOUGHT YOU SAID THAT
THE OTHER CASES THAT YOU --
DO YOU THINK THAT THOSE
OTHER CASES ARE CORRECTLY
DECIDED --
YES.
-- FROM THE OTHER?
SO YOU
WOULD NOT EVEN IF WE TOOK
THIS, YOU WOULD SAY THIS IS
--
YES.
ABSOLUTELY.
TO DISTINGUISH IT, BUT
THAT THOSE OTHER CASES ARE
APPROPRIATE EVEN THOUGH IN
THOSE CASES, THE STATE DID
NOT, THERE WERE NO ONGOING --
YES.
-- NEGOTIATIONS.
YES, YOUR HONOR, BECAUSE
AN OFFER TO A STATEMENT HAS
TO BE MADE WITH THE
REASONABLE EXPECTATION TO
NEGOTIATE A PLEA AGREEMENT,
SO AN OFFER TO PLEAD GUILTY
MAY BE CONSTRUED AS AN
INVITATION TO SIT DOWN AT
THE TABLE AND NEGOTIATE, AND TO
THAT EXTENT IT PROMOTES
NEGOTIATIONS.
THAT IS WHY
THE STATE DID NOT SEEK TO
EXCLUDE THE FIRST STATEMENT.
HOWEVER, A CONFESSION THAT
IS NOT A NEGOTIATION, IN
THIS CASE THE DIFFERENCE
BETWEEN THIS CASE AND ALL
THE CASES CITED BY -- RELIED
UPON BY THE DEFENDANT. THERE
WERE NO NEGOTIATIONS --
CALABRO NEVER SOUGHT
CONCESSION FROM THE STATE AT
ANY POINT.
FIRST HE SAYS
I WANT A PLEA AGREEMENT,
THEN SAYS I'M GUILTY, I
CONFESS, IT IS VERY CLEAR
THAT THAT SECOND STATEMENT
IS A CONFESSION, SO --
BASICALLY, WHAT YOU ARE
SAYING, INSTEAD OF SAYING I'M
WILLING TO PLEAD GUILTY IF
YOU WILL SENTENCE ME TO
X, OR Y, OR Z, OR SOME OTHER
CONDITION, THAT DIDN'T
HAPPEN HERE, HE WASN'T --
HE WOULD HAVE BEEN
NEGOTIATING, HE WASN'T
NEGOTIATING HERE.
GO BACK TO THE
STATUTE JUSTICE ANSTEAD
READS DOESN'T SAY ANYTHING
ABOUT NEGOTIATIONS IT TALKS
ABOUT THE PLEA.
YES, YOUR HONOR.
DIDN'T SAY --
DOESN'T SAY HE WANTS TO
PLEA SAYS HE WANTS AN
AGREEMENT.
HE WANTS TO PLEA, FIRST
SAYS HE WANTS TO PLEA.
HE WANTS AN AGREEMENT.
NO, NO.
PLEASE READ IT.
DOESN'T HE SAY I WANT TO
PLEA?
THAT IS WHAT HE SAYS.
USE THAT WORD.
ISN'T IT --
HE SAYS I WOULD LIKE TO
HAVE SOME KIND OF PLEA
AGREEMENT.
PLEA.
SO YOU -- USED THE WORD.
YES.
AGAIN, DOES THIS COME
DOWN TO THAT YOU HAVE TO
HAVE, AGAIN -- THAT YOU HAVE
TO HAVE I WILL PLEAD FOR X,
TO INVOKE THE *ZWHAL JUSTICE
ANSTEAD *RATE OR DOESN'T THAT
SAY --
YES, YES, THAT IS EXACTLY
WHAT I'M SAYING, IS THAT THE
RULING PROTECTING
NEGOTIATIONS ALL OF THESE
CASES HAVE HELD THAT A
STATEMENT IS INADMISSIBLE ONLY
IF MADE DURING BILATERAL
NEGOTIATIONS, HERE
NOT ONLY REQUESTING ANY
CONCESSION FROM THE STATE
THE DEFENDANT DID NOT EVEN
INDICATE A WILLINGNESS TO PLEA
BARGAIN.
IN STEPHENS DID WE
INTERPRET THE RULE THE
STATUTE WAS THAT AN
INTERPRETATION OF THE RULE
WHEN ARTICULATED AT --
THIS COURT'S CASES SO
FAR HAVE DEALT WITH
ADMISSIBILITY OF -- ADMISSION
IF THE COURT CONSIDERS THAT
SECOND STATEMENT AN
ADMISSION, A CONFESSION, NOT
AN OFFER TO PLEAD GUILTY, IT IS
CLEARLY --
MY QUESTION, DID STEPHENS
DISCUSS THE RULE?
YES.
SO IN --
-- ADOPTING ROBERTSON'S
ANALYSIS WE WERE
INTERPRETING 3.172
--
ABSOLUTELY.
NOW, THIS CASE IT SEEMS AS
THOUGH USING THOSE OTHER
CASES, ABOUT THE LETTERS, IT
WAS FOR ONLY THE SINGLE
PRINCIPLE OF WHO NEGOTIATED IT
SOMETHING IN PROGRESS,
SOMEONE INITIATES IT, DAVIS
WAS UNDER WAY, CORRECT?
ABSOLUTELY.
ONCE WE GET PAST TO
INITIATIVES ISN'T DAVIS
MORE CLOSELY RELATED TO
THIS CASE?
WHAT DO YOU UNDERSTAND
THE CIRCUMSTANCES IN DAVIS
TO BE AND HOW ARE THOSE
DIFFERENT?
WELL, IN DAVIS, THERE
WERE NEGOTIATIONS, THE STATE
--
OCCURRED BEFORE THAT.
I'M SORRY.
IT HAD OCCURRED
BEFORE THE DAY OF THESE
STATEMENTS IN DAVIS.
YES.
OKAY.
THEN THAT HAPPENED --
THERE HAD ALREADY BEEN --
THE STATE ALREADY MADE
DAVIS OFFER, DAVIS WAS TRYING
TO OBTAIN A LETTER ON OR
BEFORE DISTINGUISHABLE FROM
THIS STATE.
WHAT HAPPENED IN OPEN COURT?
NOT A LETTER?
I'M NOT SURE EXACTLY WHAT
HAPPENED BEFORE THE TRIAL
PROCEEDINGS BUT DURING THE
TRIAL PROCEEDINGS THE JUDGE
INITIATED THE
NEGOTIATIONS --
SO A LETTER,
BEFORE THE JUDGE, KEEP GOING.
YES.
AND THE JUDGE SAID WELL
THIS IS THE TIME WHEN YOU
CAN -- GOING TO BE BACK AND
FORTH.
AND THEN THE YOU KNOW
DAVIS MADE HIS STATEMENT.
SO THERE WAS CLEARLY A
NEGOTIATION BETWEEN YOU KNOW
BILATERAL STATE AND
DEFENDANT CLEARLY ABSENT
FROM THIS CASE.
IS THE STATEMENT OF PARTY
AND DAVIS, DID IT SAY IN
EXCHANGE FOR THE ACTUAL
STATEMENT OF THE PARTY?
--
DID.
SO THAT IS WHERE --
THE COURT FOUND THAT HE
WANTS SOME JAIL TIME BUT NO
PROBATION, HE HAD ALREADY
BEEN OFFERED TWO YEARS OF
COMMUNITY PAROLE AND THREE
YEARS OF PROBATION.
WHAT WERE HIS WORDS, IN
DAVIS?
HIS EXACT WORDS WERE I'M
GUILTY OF THAT BUT NOT THE
OTHER THING, NO, NO, NO, NO.
SO IT WAS NOT AN EXCHANGE
FOR ANYTHING, IT WAS I'M
GUILTY OF THAT, BUT NOT THAT.
THE STATE -- THE WORDS
THAT WERE USED.
I CONFESS --
-- FIRST DISTRICT THAT HE
COULD NOT BE
UTILIZED.
BUT HE WAS -- BUT THE
STATE HAD ALREADY -- THERE HAD
ALREADY BEEN AN OFFER FROM AT
A --
I UNDERSTAND BUT HIS
STATEMENT WAS NOT PREDICATED
UPON ANYTHING ABOUT AN
EXCHANGE FOR THE STATEMENT
THAT MORNING IN THE PRESENCE
OF THE COURT, WAS JUST LIKE
THE STATEMENT HERE.
WELL, I BELIEVE IT IS
IMPLICIT, YOUR HONOR, THAT
HE WOULD PLEAD GUILTY IN
EXCHANGE FOR THE COMMUNITY
CONTROL AND PROBATION --
WASN'T STATED.
IT WASN'T EXPLICIT WE
DON'T KNOW EXACTLY.
IN YOUR POSITION, THE
STATE'S POSITION IS IS THAT
-- THAT IN DAVIS THERE WERE
ONGOING NEGOTIATIONS.
THE STATE HAD ALREADY
MADE THE DEFENDANT AN --
IN THIS CASE THERE HADN'T
BEEN ANYTHING --
NO NEGOTIATIONS --
WHAT IS WHAT DOES THE
RECORD REFLECT IF ANYTHING
IS mR. cALABRO'S STATUS AT
THIS POINT IN JAIL, OUT OF JAIL?
I BELIEVE --
I'M SORRY.
THIS HAPPENED IN 2002,
THIS CASE HAD NEVER BEEN TRIED,
RIGHT.
THAT IS CORRECT, YOUR
HONOR.
HE HAS BEEN IN ON THESE
CHARGES IN JAIL SINCE 2002.
THAT'S MY UNDERSTANDING.
I BELIEVE WE ARE --
BECAUSE I WAS, JUST --
JUSTICE WELLS ASKED THAT WE
LOOK AT THE ISSUE, LOOK AT THE
WHOLE PICTURE HERE, AND DOES
THE STATE -- IS THIS A -- THEY
HAVE SOME STRONG EVIDENCE,
OF THIS MAN'S GUILT. IS
THERE A CONFESSION, ARE
THERE EYEWITNESSES --
OF COURSE THE STATE WOULD
ARGUE THAT THIS IS THE
CONFESSION, YOU HAVE IT
RIGHT HERE IN FRONT OF YOU,
I MEAN HE SAYS I KNOW THIS
IS UNUSUAL, BUT UNFORTUNATELY,
I'M GUILTY OF THIS, WHAT THE
POLICE ARE SAYING IS TRUE.
AT TRIAL LOOK AT THE
CONTEXT OF THIS, ALL THIS,
NOW IN JAIL FOR SIX YEARS,
BUT HE SAID IF AN ATTORNEY
HAD COME TO SEE ME WITHIN THE
PAST THREE WEEKS MAYBE THEY
WOULD HAVE AN IDEA WHERE MY
MIND IS, BUT RIGHT NOW I'M
GUILTY.
TO ME IT MEANS I JUST
GOT TO GET OUT OF THIS
SITUATION, JUST PLEAD ME OUT
AND GET ME OUT OF HERE, NOT
THAT I'M -- YOU KNOW.
SO, ANYWAY, I THINK THAT IS --
I AGREE I THINK THAT IS WHAT HE IS
SAYING I WANT A PLEA AGREEMENT
I'M GUILTY I WANT A PLEA
AGREEMENT, AND THAT IS
OBVIOUSLY COMPLETELY
UNREASONABLE.
SHOULD -- STATE'S CASE?
FRANKLY I DON'T KNOW WHAT
-- WHAT IS GOING TO HAPPEN,
BUT I PRESUME --
I WAS ASKING IS THERE MORE
ELABORATE CONFESSION
SOMEPLACE THAT YOU ARE AWARE OF?
NOT IN THE RECORD NOT
THAT I KNOW OF.
I DON'T KNOW.
I GUESS THE REAL ISSUE
HERE, WAS THERE -- NOT THE REAL
ISSUE BUT WAS THERE A STAY
OF SOMETHING IN THIS CASE?
I MEAN, IT HAS BEEN SIX
YEARS, HE COULD HAVE PLED,
AND WHO KNOWS WHAT KIND OF
NOT KNOWING WHAT HIS RECORD
IS OR ANYTHING, WHAT KIND OF
SENTENCE HE GOT?
HE COULD HAVE GOTTEN?
SO, WHAT HAPPENED?
IN OTHER WORDS, WHY HAS
IT TAKEN SO LONG.
YES.
I BELIEVE, FROM MY
READING OF THE RECORD I
BELIEVE THAT HE WAS VERY
UNHAPPY WITH HIS ATTORNEYS
AND HE WOULD ALWAYS SEEK TO
HAVE HIS ATTORNEY WITHDRAW,
AND I THINK --
SAID NOTHING WHILE HE --
ALLEGEDLY MAKES A STATEMENT
THE STATE NOW WANTS TO USE
TO PROVE THIS GUILT.
THIRD DCA CASE HAS AN 06
CASE NUMBER SO IT HASN'T
BEEN ON APPEAL ALL THAT
LONG.
CORRECT.
SO IT SEEMS NOTICE OF APPEAL
WASN'T EVEN FILED UNTIL
SOMETIME IN 2006.
YES THIS WAS A DIFFERENT
ATTORNEY, THE ATTORNEY THAT
THAT REPRESENTS HIM AT THE
ARRAIGNMENT, LATER HE WAS
REPRESENTED, I THINK HE --
AND COUNSEL MAY CORRECT HIM
BUT I THINK HE WAS THROUGH A
COUPLE OF LAWYERS.
PRETTY, LOOK AT THIS
BELOW, WILLIAMS PUBLIC
DEFENDER, FIRST -- DISCOVERY
ALL THIS IS GOING ON THE
ONLY OTHER THING HE SAYS IS
SURE IS, I MEAN, YOU KNOW
THIS IS MY CLIENT, I WOULD
BE GOING, I DON'T THINK --
THE RECORD MIGHT NOT
REFLECT THE PHYSICAL
ATTEMPTS TO DO THAT.
WHY ISN'T IT WHY NOT IT
JUST A BETTER RULE IN THIS
KIND OF SITUATION WHERE
DEFENDANT COMES BEFORE A
COURT -- ABOUT BEING
EXASPERATED ABOUTED BEING IN
JAIL, SAYS LOOK I WANT TO
PLEAD GUILTY, I'M GUILTY,
-- I REALLY AM GUILTY OR I
WANT TO A PLEAD GUILTY, WHY
ISN'T IT JUST A BETTER RULE
THE RULE SAYS YOU CANNOT USE
THAT AS AN ABSOLUTE RULE
THE CONTEXT WHEN A DEFENDANT
COMES UP AND SAID LOOK I AM
MAKING -- TO PLEA, THAT JUST
STOP RIGHT THERE, WHATEVER
ELSE HE SAID CANNOT BE
USED.
YOUR HONOR, IF HE HAD
STOPPED THERE WE WOULDN'T BE
HERE.
I'M NOT SAYING -- HE
NEEDED TO DO STOP THERE, I'M
SAYING THAT THAT IS WHY
NEED TO LOOK AT NOT WHETHER
OR NOT THE STATE THEN MAKES
SOME COUNTEROFFER, AND
THERE'S NEGOTIATIONS GOING
BACK AND FORTH, ONCE HE
MAKES THE OFFER TO PLEA WHAT
GOES ON IN THAT SETTING IS
--
I WOULD SUBMIT THAT IS
WHY THIS COURT ADOPTED THE
STEPHENS TEST, WHICH IS I
THINK PERFECTLY REASONABLE.
STEPHENS TESTS TALKS
ABOUT NEGOTIATIONS, I'M
SAYING ONCE HE MAKES THAT
OFFER, LET'S THEN SAY,
WHATEVER HE SAID IN THE
CONTEXT OF MAKING THAT OFFER
IS JUST NOT TO BE USED BY
THE STATE, THE STATE IS GOING TO
HAVE TO -- IF THAT FALLS
THROUGH THE STATE IS GOING
TO HAVE TO USE WHATEVER
EVIDENCE THEY ALREADY HAVE.
I THINK THIS CASE IS A
PERFECT EXAMPLE, BECAUSE IT
MAKES NO SENSE, HE SAYS I
WANT A PLEA AGREEMENT, GOES
ON TO CONFESS.
DID THE STATEMENT HAVE
ANY OTHER EVIDENCE AGAINST
HIM -- SHAKY CASE.
AT THE TRIAL LEVEL WHEN
THIS CAME BEFORE THE TRIAL
JUDGE WAS THE TRIAL JUDGE
ASKED TO APPLY THE
TWO-TIERED STANDARD?
YES, YOUR HONOR.
AND HE DID?
AND -- HE --
WHY IS THIS ANY
DIFFERENT THAN THE LAWYER
GOING TO THE STATE
AND SAYING THE SAME THING?
LOOK.
WE WANT SOME KIND
OF PLEA AGREEMENT BECAUSE HE
IS ANXIOUS TO GET THIS THING
RESOLVED, HE ADMITS HE DID
IT, IT IS THE BEST DEAL
YOU ARE GOING TO GIVE US,
AFTER HE SAYS HE WANTS SOME
KIND OF PLEA AGREEMENT,
BECAUSE HE DOESN'T WANT TO
WAIT TILL -- WHATEVER,
ISN'T IN EVERYTHING THAT HE
SAYS AFTER IN THE
CONTEXT OF HIS DESIRE TO GET
THIS THING OVER WITH JUST
LIKE HE WOULD INSTRUCT HIS
LAWYER, YOU TELL THE STATE I
DON'T WANT TO, SO I WANT
THIS THING RESOLVED, TELL
THEM I DID IT, YOU KNOW, AND
WHAT IS THE BEST DEAL
THEY WILL GIVE ME?
ISN'T THAT -- ISN'T THAT THE
CONTEXT OF EVERYTHING THAT
IS BEING SAID HERE?
IT MAY BE IN THE CONTEXT,
BUT CERTAINLY WASN'T
RECOMMENDED, YOUR HONOR.
WHAT DEFENDANT IN THEIR RIGHT
MIND WOULD CONFESS TO
SECOND-DEGREE MURDER TRYING
TO SEEK A PLEA AGREEMENT?
THIS IS A VERY UNUSUAL CASE,
I ADMIT, EVEN SAYS --
JUDGE, THIS IS --
I HAVE TO ASK THIS, MAKE SURE
THIS IS CORRECT.
THE TRIAL JUDGE,
AFTER HEARING ALL THE
TESTIMONY, EXCLUDING
THOSE STATEMENTS, ENTERED
AN ORDER.
THAT IS CORRECT, YOUR
HONOR.
ISN'T THE TRIAL JUDGE'S
FINDINGS ON WHETHER IT WAS
REASONABLE, SUBJECTIVE
BELIEF ENTITLED TO --
WELL, I WOULD LIKE TO
POINT OUT, FIRST OF ALL, THAT
THE JUDGE AT ARRAIGNMENT WHO
WAS THERE WHILE CALABRO
MADE THESE STATEMENTS, WAS
A DIFFERENT JUDGE.
THAT JUDGE DIDN'T SAY, IT
SOUNDED LIKE IT PASSED EVERYONE
BY, ON ARRAIGNMENT.
BUT THE JUDGE RULED ON
THE MOTION TO SUPPRESS HE WAS
RELYING ON TRANSCRIPTS LIKE
THIS COURT IS, IT WAS NO --
TESTIMONY --
NO, YOUR HONOR THAT COURT
JUST -- THIS COURT IS IN JUST
AS GOOD A POSITION AS THAT
COURT.
-- YOU HAVE USED YOUR
TIME.
THANK YOU VERY MUCH.
MAKE YOUR CONCLUDING
REMARKS, WHAT YOU WANT US TO DO.
THAT IS FINE.
OKAY.
I WANT TO POINT OUT TWO
QUICK THINGS.
I APPRECIATE THE EXTRA TIME FOR
REBUTTAL.
IF HE SAID I WANT TO
PLEAD GUILTY BECAUSE I'M
GUILTY THAT WOULD BE COVERED BY
THE RULE, OR WOULD IT?
WOULD HE HAVE TO SAY I WANT
TO PLEAD GUILTY BECAUSE I'M
GUILTY ONLY IF I GET
PROBATION OR SOMETHING LIKE
THAT?
WILL YOU AGREE THAT WE
HAVE TO -- WHATEVER THE
CONCLUSION IS WE DO IT IN A
CONTEXT OF TWO-TIERED
ANALYSIS THAT IS ARTICULATED IN
STEPHENS?
YES, YOUR
HONOR.
I DO WANT TO POINT OUT
IN ANSWER TO ONE OF THE
QUESTIONS PROPOUNDED
EARLIER, STEPHENS, MY
UNDERSTANDING WAS DID NOT
VOLUNTEER A PLEA
AGREEMENT, LIKE IN COURT, IT
WAS A PLEA AGREEMENT HAD
ALREADY BEEN COMPLETED.
I'M NOT TALKING ABOUT THE
RESULT OF STEPHENS.
I'M TALKING ABOUT THE ANALYSIS
THAT STEPHENS SAYS THE COURT
SHOULD UNDERTAKE
DETERMINING WHETHER THESE
STATEMENTS SHOULD BE ADMITTED
OR NOT.
CORRECT, BUT THAT IS THE
ANALYSIS THAT SHOULD BE --
SHOULD BE USED, YES, YOUR
HONOR.
I THINK -- I THINK THE
THIRD DISTRICT, IN THEIR
DECISION, THEIR OPINION THEY
DENIED OR SAID SPECIFICALLY
THAT THERE WERE NO -- THIS IDEA
OF ONE STATEMENT OR TWO
STATEMENTS DIDN'T REALLY
MATTER, THAT THEY WERE
REALLY GOING TO SAY THAT THE
STATE'S CONFESSION THAT HAS
BEEN REITERATED HERE WAS
IRRELEVANT TO THEIR DECISION
BECAUSE -- AND THE ONLY REASON
WHY THEY WEREN'T OVERTURNING
IT WAS BECAUSE THE STATE HAD
MADE THAT CONCESSION.
THEY WOULDN'T HAVE
ALLOWED THAT EVEN FIRST
STATEMENT --
YES.
DO YOU AGREE BEFORE THE
TRIAL JUDGE HERE THE
DEFENDANT DIDN'T TESTIFY,
THERE WAS NOTHING BEFORE THE
TRIAL JUDGE IN THIS CASE
OTHER THAN WHAT THIRD DCA
AND WE ARE REVIEWING?
IS THAT ALL THERE WAS?
YES.
I THINK, IF I UNDERSTAND
YOUR QUESTION --
I'M SAYING, THE DEFENSE
COUNSEL DIDN'T -- SAID -- I
WAS FRUSTRATED I'VE SEEN
PEOPLE BEFORE ME ENTERING
INTO AGREEMENTS WITH THE
STATE, AND I WAS READY TO
GET THIS OVER WITH AND I
WANTED TO DO, HAVE AVAILABLE
TO ME WHAT HAPPENED TO OTHER
DEFENDANTS, I WANTED MY
ATTORNEY AND THE STATE
ATTORNEY STAFF TO SAY WELL
HE PLEAS, THIS IS WHAT WE
AGREE ON, I MEAN WHAT I'M
SAYING IS THAT WASN'T
PRESENTED TO THE TRIAL JUDGE
TO MAKE A TWO-TIERED ANALYSIS.
MY MEMORY OF THE RECORD
THERE WAS VERY LITTLE
TESTIMONY, BECAUSE THE STATE
CONCEDED THE FIRST POINT
WHICH IS THAT HE WAS MAKING
A SUBJECTIVE PLEA BARGAIN.
DIFFERENT TRIAL JUDGE,
THOUGH.
YES, DIFFERENT THAN THE
ONE AT ARRAIGNMENT BUT A
DIVISION --
WE DON'T HAVE ANY ISSUE
ABOUT A TRIAL JUDGE
EVALUATING THE CREDIBILITY
OF ANYBODY.
NO.
NO.
WE HAVE THE TRIAL JUDGE
LISTENING TO THE STATE'S
CONCESSION WHICH WAS A VALID
CONCESSION.
THE COURT POINTED
OUT AND OFFERED A PLEA.
THE ISSUE THAT CAME BEFORE THE
COURT AT THE TIME OF THE
HEARING WAS WHAT ABOUT THAT
SECOND STATEMENT THAT IS
PART OF THE SAME STATEMENT?
OR IS THAT PART OF A DIFFERENT
STATEMENT?
WELL -- I MAYBE GOT
LOST IN THE SEQUENCE HERE,
BUT I THOUGHT THAT YOU HAD
MADE A STATEMENT IN YOUR
OPENING ARGUMENT HERE THAT
THERE HAD BEEN SOME KIND OF
EVIDENTIARY HEARING IN WHICH
MR. CALABRO HAD MADE SOME
TYPE OF STATEMENT.
IS THAT NOT CORRECT?
MR. CALABRO DID NOT
TESTIFY AT THE HEARING TO MY
RECOLLECTION.
OKAY.
I DON'T REMEMBER, I DON'T
THINK --
WENT ON FROM 2002 UNTIL
2006?
I THINK IT WAS THE -- I
THINK THE SUPPRESSION
HEARING TOOK PLACE IN 2005,
SO WHATEVER HAPPENED FROM
2003 TO 2005 WAS HE WAS -- HIS
LAWYER WAS PURSUING DISCOVERY,
HIS TRIAL ATTORNEY PURSUING
DISCOVERY.
THERE WERE SOME
ISSUES, I WAS NOT AWARE OF
ALL THE DETAILS WHERE HE WAS
HAVING DIFFICULTIES WITH
SOME LAWYERS GETTING NEW
LAWYERS, REPLACING THEM, AND
THAT THE POINT, AFTER
DISCOVERY COMPLETED A MOTION
TO SUPPRESS FILED HERE IN
2005, GRANTED THE APPELLATE
PROCESS HAS BEEN GOING ON
SINCE.
THESE ARE ALL APPOINTED
ATTORNEYS AND THE TRIAL
JUDGE RAN WITH THAT, APPOINTED
NEW ATTORNEYS, THEY MUST HAVE
GONE THROUGH THE PROCESS TO
DETERMINE WHETHER THERE WAS
SOME PROBLEM, AND IT WAS NOT
THE CLIENT'S PROBLEM WHERE A
JUDGE WOULD HAVE SAID YOU
CAN DISCHARGE THEM BUT YOU
HAVE TO REPRESENT YOURSELF;
CORRECT?
THAT IS CORRECT, YOUR
HONOR.
THERE MUST HAVE BEEN
SOME PROBLEM FOR THREE YEARS
FOR THE MAN'S JUSTICE
IN DADE COUNTY; IS THAT WHAT
YOU ARE TELLING US?
YOUR HONOR, THERE WERE
ISSUES THAT WERE NOT
MR. CALABROS' FAULT, SOME THAT
WERE HIS FAULT.
ONE OF HIS BIGGEST COMPLAINTS WAS THE
LACK OF MOVEMENT ON HIS CASE.
THAT HAS BEEN CONSISTENT
THROUGHOUT.
THANK YOU.
THANK YOU FOR YOUR
CANDOR.
WE WILL TAKE THE CASE UNDER
ADVISEMENT.
COURT WILL TAKE ITS MORNING RECESS.
ALL RISE.