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Motion To Permit Character Evidence

(1) MOTION TO RECONSIDER AND ADMIT CHARACTER EVIDENCE TESTIMONY
(2) RESPONSE TO COURT REPORT REGARDING CPL. COHILL
(3) SUMMARY ARGUMENT
AND
INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, by and through his undersigned attorney, and respectfully (1) moves this Honorable Court to reconsider its ruling that character evidence is not permitted at the Defendant’s violation of probation proceeding, and admit such evidence, (2) responds to the Court’s April 18 report regarding interaction with Corporal C., and (3) provides brief summary argument, and in support thereof, states as follows:

A. Motion to Reconsider and Admit Character Evidence Testimony

1. During the VOP hearing, the Defendant offered additional character evidence testimony, from both of his parents, to further establish the fact that he is a peaceable, non-violent, and respectful young man, who, possessing such character traits, would not engage in the breach of the peace, or resisting conduct alleged.

1. This Honorable Court ruled that character evidence was not relevant and declined to permit defense counsel to call the parents to testify regarding the Defendant’s character trait for peaceability.
2. This Motion respectfully requests the Court reconsider this ruling and permit the Defendant to place on the record such relevant character evidence.
3. The Defendant is charged with violating his probation in the instant case – solely due to his arrest for the alleged crimes of (1) breach of peace, and (2) resisting an officer without violence. No other grounds to violate his probation are alleged.
4. During the violation of probation hearing, held on April 17, the State presented testimony that the Defendant was cursing, yelling loudly, trying to incite others, and being disrespectful to law enforcement officers. Indeed, although not relevant to the arrest, Officer S. testified that Defendant put his hand on Officer S. chest.
5. Both the breach of the peace charge and these alleged facts assert, as elements of the crime and proof, that the Defendant was not acting peaceably. By its own express terms, a “breach of the peace” requires that the individual engage in conduct that adversely affects the peace. Persons doing so are not acting peaceably. Clearly, the Defendant’s charge requires the State to prove he was not acting peaceably. Thus, the Defendant’s character trait for peaceability is inherently and clearly relevant to the VOP ground.
6. Of course, not only must this plain language of the statutory term, “breach of the peace,” be given its common and ordinary meaning, but it must be construed in the light most favorable to the Defendant.
7. “As in all cases involving statutory construction, our starting point must be the language employed by Congress, and we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Thus, absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002), citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Thus, it cannot be gainsaid that, under §90.404, Fla. Stat., the Defendant was, and is, entitled to place before the Court evidence of his character trait for peaceability.
8. This is a proper application of the rule of lenity. “The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused.” United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010). Indeed, Florida has its own statutory rule of lenity, at §775.021, Fla. Stat., which provides that “statutes shall be strictly construed,” and “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”
9. As noted above, counsel for the defense sought to call the Defendant’s parents to testify to his reputation in the community for peacefulness and nonviolence, and his reputation for not possessing character traits of a person who would be disrespectful to officers, incite others, curse loudly at officers, or resist or fight in any way with officers.
10. In substance, the testimony of both parents would have been as follows:
a. The Defendant’s reputation is that he is calm, respectful, polite, peaceful, and non-violent, and is especially so with regard to any authority figure, and most especially with regard to police officers – particularly since his uncle is a police officer in New York, and the Defendant has nothing but the utmost respect for law enforcement.
b. The Defendant’s parents have also reviewed the video of the incident and will be able to testify that the conduct observed of the Defendant is consistent with his reputation for peaceability.
11. Section 90.404, Fla. Stat. provides as follows:
(1) CHARACTER EVIDENCE GENERALLY. – Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:

(a) Character of accused. – Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.
(emphasis added).
12. Thus, § 90.404, Fla. Stat. permits the accused to present “evidence of a pertinent trait of character.” Federal Rule of Evidence 404(a) also states that an accused may introduce “evidence of a pertinent trait of his character.” In United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982) the court stated, “The word ‘pertinent’ is read as synonymous with ‘relevant.’”
13. “The general rule, and the one recognized in Florida, is that the accused in a criminal prosecution may introduce evidence of his good character and reputation where such evidence has reference to the trait involved in the offense with which the defendant is charged.” Seabrook v. State, 348 So. 2d 663 (Fla. 2d DCA 1977) (citing Norman v. State, 156 So. 2d 186 (Fla. 3d DCA 1963). That is precisely the case here.
14. In Pino v. Koelber, 389 So. 2d 1191, 1193 (Fla. 2nd DCA 1980), the court stated that a defendant in a criminal case can introduce evidence of his good character and reputation where such evidence has reference to a trait involved in the offense charged. Thus, a criminal defendant accused of assault or battery is entitled to introduce evidence of his lack of propensity toward violence. Again, that is precisely the case here. The Defendant is charged with a breach of the peace – which entitles him to place into evidence his character trait for peaceability.
15. Section 90.405(1), Fla. Stat. states that, “[w]hen evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation.” Here, the Defendant’s parents are aware of his reputation in the community for peacefulness and should have been permitted to testify regarding those character traits.
B. Response to Court Report Regarding Cpl. C.
16. On April 18, this Honorable Court kindly informed the parties of her recollection of prior informal interaction with Cpl.C., and his family, at youth sporting events a year or two ago.
17. This Honorable Court may be called upon to make credibility determinations regarding the VOP hearing. Counsel says “may,” because Cpl. C. has admitted the basis for the breach of the peace arrest set forth in his approved arrest report (written contemporaneously with the events), as well as his elaborate claim that the Defendant was standing at arm’s length away from him for about a minute, hurling profanities at him, at which time he immediately arrested him, was entirely incorrect. For that reason, by his own admission, reaching into a crowd of young folks and pulling the Defendant out to arrest him, constituted an unlawful arrest, since the elaborate, but fabricated (or “mistaken”) factual basis simply does not exist. Indeed, the video clearly shows the Defendant attempting to seek shelter in the middle of a group of young folks, in order to get away from the police aggression to which he had just been exposed (with Sgt. S. aggressively shoving him backwards some 20 feet). Thus, respectfully, this Honorable Court need not necessarily make any credibility determinations regarding Cpl. C.
18. However, should the Court determine a need to make such credibility determinations, clearly, Cpl. C’s testimony is refuted, not only by his own admissions, but by the video and by two unimpeachable eyewitness bystanders – R.E. and E.E. Thus, if this Honorable Court believes that this prior informal interaction with Cpl. C. would make it more likely for the Court to believe him, or make it difficult or awkward for the Court either make factual findings contrary to his testimony and/or dismiss the VOP, certainly, the Defendant would be compelled to request this Honorable Court to consider recusal.
19. Counsel hastens to add that he and his client have the utmost confidence in this Honorable Court’s neutrality and impartiality, and only makes this inquiry to ensure the Court is comfortable proceeding with a ruling.
C. Summary Argument
20. As noted above, this Honorable Court need not expend any significant effort to parse out the conflicting testimony, for multiple reasons.
21. First, the basis for the arrest, as documented in Cpl. C’s approved arrest report (as he admitted on the stand), and in his sworn deposition testimony (which he also admitted on the stand), was that the factual basis for the arrest was that the Defendant was standing an arm’s length away from him, hurling profanities at him, for about one minute. That was the sole basis for the arrest. Cpl. C. knew nothing about the alleged “first encounter” with Officer S. Thus, that alleged interaction could not form a basis for the arrest. Moreover, Officer S. testified (consistent with his written report) that “first encounter” was not a breach of the peace and would not have supported an arrest. That fabricated or “mistaken” version of the grounds for the arrest (the alleged “second encounter”) are demonstrably incorrect – as demonstrated by the video and as confirmed by Cpl. C. in his deposition and VOP testimony.
22. Second, the video clearly demonstrates that the Defendant, himself, was the victim of police aggression, in the form of a very large officer aggressively shoving him backwards 20 feet, in what was surely a very scary experience for the Defendant – so much so that he sought refuge in the middle of some of the other youth.
23. Third, the video makes it clear that Officer S. was not arresting the Defendant. Rather, he shoved him back some 20 feet, and then disengaged. Clearly, not only was the Defendant not standing an “arm’s length” in front of Cpl. C., but it was Cpl. C. who then, after the aggression by Officer S. had ended, and the Defendant had sought to seek refuge in the middle of the small group of youth, literally reached into the crowd and grabbed the Defendant. Clearly, the Defendant was committing no crime – let alone a breach of the peace – while standing in the middle of a small crowd of youth. Thus, the true facts surrounding the moment of arrest clearly demonstrate (both from the video and now from the “corrected” testimony of Cpl. C.) that the Defendant was not engaged in any conduct to justify his arrest.
24. Fourth, the allegation of the Defendant hurling profanities is simply false, as demonstrated by the following:
a. Video – the Defendant is seen, with his hands in his pockets, politely talking to one of the officers. That video proof demonstrates he was not the mad man screaming and hurling profanities the officers mistakenly claim.
b. Video – Demonstrates the Defendant was not engaged in any profanity. The officers acknowledged they could not hear him uttering profanity, and the eyewitnesses assured the Court he did not. Rather, he was attempting to calm others down.
c. Chaotic scene – Cpl. C. conceded the scene was chaotic with a large number of youths in the area, which clearly led to this mistaken arrest.
25. Fifth, it was only after seeing the video that Cpl. C. claimed that Officer S. was at his side. His previous sworn deposition testimony (which he admitted during the hearing), was that it was only Officer C. standing beside him, during the alleged profanity tirade by the Defendant. Having seen the video, and in an effort to salvage the incredibly inaccurate “mistake” Cpl. C. made in both his arrest report and his sworn testimony, Cpl. C. had to claim that Officer S. was also standing beside him. In any event, that too is irrelevant, since, as noted, it is clear that Officer S. had no grounds to arrest the Defendant, or any intention to do so. He simply shoved him back 20 feet and did not even attempt to arrest the Defendant.
26. Sixth, it is now un-refuted that Cpl. C. agrees his alleged arrest ground was a “mistake.” However, this was not a “mistake” about some insignificant detail. This “mistake” went to the very heart of the grounds for the arrest and required Cpl. C. to fabricate an elaborate basis for the arrest, that simply did not exist, and document that false claim in his arrest report. In truth, Cpl. C. simply reached into a crowd and extracted the Defendant while he was simply standing there – not violating the law. The video captures the very moment of the arrest. That should end the inquiry.
27. Of course, even if it were true that the Defendant was engaged in profanity, that would not constitute a lawful basis for the arrest. The Defendant’s conduct was protected by the First Amendment to the United States Constitution, and thus, he cannot be guilty of breach of the peace. See Miller v. State, 667 So. 2d 325 (Fla. 1st DCA 1995); L.A.T. v. State, 650 So. 2d 214 (Fla. 3rd DCA 1995); D.G. v. State, 661 So.2d 75 (Fla. 2nd DCA 1995) (yelling at officers; protesting loudly and obnoxiously); W.L. v. State, 769 So. 2d 1132 (Fla. 3rd DCA 2000); S.D. v. State, 627 So.2d 1261 (Fla. 3rd DCA 1993).
28. Lastly, since the arrest for an alleged breach of the peace was an invalid arrest, even if the Defendant had sought to “pull his right arm away” (as claimed in the arrest report), that would not have been a cognizable crime. An officer must be “engaged in the lawful” arrest for a resisting without violence charge to be valid. Fla. Std. Jury Insts. (Crim.) 21.2. Citizens are lawfully permitted to resist (without violence, as here), an unlawful detention or arrest. Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999).
WHEREFORE, it is respectfully requested that (1) this Motion to permit character evidence be granted, (2) that the Court inform the parties if the Court’s prior interaction with Cpl. C. will have any evidentiary effect on the VOP hearing, and (3) accept this brief supplemental argument in support of a ruling dismissing the VOP.