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Legal Pleadings:

Recollection of Events

PRELIMINARY STATEMENT
Throughout this brief Appellant will be referred to as “State” or “Appellant.” Appellee will be referred to as “Defendant.” The Record on Appeal designated as Record on Appeal Volume I will be referred to as R. followed by the page number(s).

STATEMENT OF THE CASE AND FACTS
On November 28, Officer T.C.M., with the Jacksonville Sheriff’s Office (JSO), stopped the Defendant while he was driving in Jacksonville, Florida. (R. 194). Officer M. did not prepare any reports regarding the stop or arrest of the Defendant. (R. 182). JSO Officer J.K.H. conducted an investigation for Driving Under the Influence (DUI), and arrested the Defendant for DUI. (R. 196). On December 31, the State filed an Information alleging the Defendant was DUI. (R. 26-27).

On April 5, the Defendant filed a Motion to Suppress the Evidence obtained as a result of an illegal stop. (R. 37-63). At the Motion to Suppress Hearing, held on April 14, the State called Officer M. to testify regarding the stop of the Defendant. However, Officer M. testified he did not have an independent recollection of the stop of the Defendant. (R. 181). Then, upon further questioning by the State, he stated he remembered some general items from that night, but would need to read “his” police report to recall specifics. (R. 181).

At the suppression hearing, Defense counsel introduced evidence of Officer M.’s testimony at a Department of Motor Vehicles Formal Review Hearing (hereinafter “DMV Hearing”), including his statements that he had no independent recollection of the events surrounding the stop, other than what he was reading in the report prepared by Officer H. (R. 185). Officer M. agreed that on January 21, when he testified at the DMV Hearing regarding the Defendant’s stop, he had an opportunity to review the reports prepared in this case. (R. 182). He admitted that, despite reviewing those reports, in order to answer questions at the DMV hearing, he had to read from the reports. (R. 183).

At the suppression hearing, Officer M. further demonstrated his lack of independent recollection of the stop when he testified he could not recall how many times he observed the Defendant’s vehicle weaving within its lane (R. 198), how many times the vehicle went over the lines (R. 199), or whether or not the Defendant used his blinker. (R. 200). The officer then (again) stated he did not have an independent recollection of the stop, other than what he could read in the reports. (R. 211). Officer M. stated he had no memory of the stop, other than the one paragraph he wrote regarding the stop, which was copied and pasted into Officer H.’s Arrest and Booking Report. (R. 212-213).

Officer M. admitted during the suppression hearing that he had no independent present memory of the events surrounding the stop when he testified at the DMV Hearing two months earlier. (R. 211). Officer M. testified there was nothing that had happened, between the date of the DMV Hearing and the date of the suppression hearing, to refresh his recollection of the events surrounding the stop of the Defendant. (R. 211).

Due to the fact that the officer did not have a present memory of the case, he could not identify the Defendant at the suppression hearing. (R. 195).

As noted in the trial court’s order granting suppression, the State did not introduce the Arrest and Booking Report, which was sworn to by Officer H. (R. 160-161).
Defendant objected to Officer M.’s testimony, because he did not have an independent present recollection of the events surrounding the stop, and was therefore not a competent witness, and asked the court to grant his Motion to Suppress, because there was no competent substantial evidence to support a lawful stop of the Defendant. (R. 10, 216-220). The trial court heard Officer M.’s testimony, and reserved ruling on whether or not the testimony could later be stricken or relied upon. (R. 224, 230).

On April 5, Defendant filed his Supplement to Motion to Suppress, asking the court to grant the Motion to Suppress, because Officer M. did not have a present recollection of the events surrounding the stop. (R. 155-159).

On May 9, the court filed a written order, granting Defendant’s Motion to Suppress, finding that the officer’s testimony was insufficient as a matter of law, because he had no independent memory of the case, and that after reviewing the report, prepared by another officer, his memory was not refreshed. (R. 160-161). The court noted the officer was unable to identify the Defendant. (R. 160). The court also found that the State was unable to lay a foundation for past recollection recorded, and that the officer’s memory was not refreshed after reviewing the report. (R. 160).
The State filed a notice of appeal. (R. 162). The State then filed an initial brief on September 28. This is the Defendant’s answer brief.

STANDARD OF REVIEW
The ruling of the trial court on a motion to suppress comes clothed with a presumption of correctness, and the appellate court must interpret the evidence and reasonable inference and deductions in a manner most favorable to sustaining the trial court’s ruling. Owen v. State, 560 So.2d 207, 211 (Fla. 1990); State v. Allen, 994 So.2d 1192, 1194 (Fla. 5th DCA 2008). A ruling on a motion to suppress is a mixed question of law and fact, and there are two appropriate standards of review. United States v. Harris, 928 F.2d 1113, 1115-6 (11th Cir. 1991). The standard of review for the trial court’s factual findings is whether competent and substantial evidence exists to support the trial court’s findings. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d, 457 U.S. 31 (1982). Findings of fact should be reviewed only for “clear error,” with “due weight to be accorded to inferences drawn from those facts” by the lower tribunal. Hines v. State, 737 So.2d 1182, 1184 (Fla.1st DCA1999). The findings of fact receive deference, unless clearly erroneous. Davis v. State, 594 So. 2d 264 (Fla. 1992); State v. Setzler, 667 So. 2d 343 (Fla. 1st DCA 1995); State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001) (“Appellate courts cannot use their review powers in such cases as a mechanism for reevaluating conflicting testimony and exerting covert control over the factual findings.”). The standard of review for the trial court’s application of the law to the factual findings is de novo. Harris, 928 F.2d at 1116. Accord, Setzler, 667 So. 2d 343.

SUMMARY OF THE ARGUMENT
The trial court properly granted the Defendant’s Motion to Suppress. The court made factual findings that the officer had no independent memory of the case, and that after reviewing the reports, his memory was not refreshed. The court noted the officer was not able to identify the defendant. The court also found that the State was unable to lay a foundation for past recollection recorded, in order to introduce the Arrest and Booking Report. Those factual findings are supported by the record, and thus, should be upheld by the appellate court.
Because the trial court found the officer did not have an independent present recollection of the stop of the Defendant, the court properly found that the officer’s testimony regarding the stop of the Defendant was insufficient as a matter of law. There was no competent substantial evidence to establish probable cause for the stop, and the trial court’s ruling on the Defendant’s Motion to Suppress should be affirmed.

ARGUMENT
I. THE TRIAL COURT’S FACTUAL FINDING THAT THE OFFICER HAD NO PRESENT RECOLLECTION OR MEMORY OF THE STOP IS SUPPORTED BY COMPETENT AND SUBSTANTIAL EVIDENCE

The trial court made a factual finding that, at the Motion to Suppress Hearing, held on April 14, Officer M. did not have an independent recollection of his November 28, 2015 stop of the Defendant. (R.160). The court further found that, after reviewing the report – prepared by another officer – Officer M.’s memory was not refreshed, and therefore his testimony was incompetent as refreshed recollection. Id. The trial court also found the State was unable to lay the foundation for past recollection recorded, in order to introduce the Arrest and Booking Report. Id. The record reveals the State never attempted to introduce the report.

These factual findings by the trial court should be reviewed only for “clear error,” with “due weight to be accorded to inferences drawn from those facts” by the lower tribunal. Hines, 737 So.2d at1184. The standard of review for the trial court’s factual findings is whether competent and substantial evidence exists to support the trial court’s findings. Tibbs, 397 So. 2d at 1123.
In the instant case, the trial court’s factual findings are supported by competent and substantial record evidence. As noted, Officer M. initially testified he did not have an independent recollection of his November 28 stop. (R. 181). Evidence was introduced at the suppression hearing that Officer M., during his testimony at the DMV Hearing, swore he had no independent recollection of the events surrounding the stop of the Defendant, other than what he could read from the report. (R. 185). He also testified at the suppression hearing, that nothing had happened, between the time of the DMV Hearing and the suppression hearing, to refresh his recollection of the events surrounding the stop. (R. 211).

The State argues in its initial brief (p. 7) that the factual findings by the trial court were in error because the officer testified during the suppression hearing as to certain facts regarding the stop. However, the only observations Officer M. was able to discuss were those observations recorded in the Arrest and Booking Report. (R. 2). As Officer M. himself stated, he had no independent recollection of the events surrounding the stop of the Defendant. (R. 185). Thus, he was not able to testify from his own memory, but was simply reading from a report, which was never introduced as evidence. The trial court had an opportunity to observe the demeanor of the officer, and hear his testimony. Based on those observations, and the officer’s testimony, the trial court made a factual determination that the officer did not have an independent present memory of the events surrounding the stop. Because competent and substantial evidence exists to support the trial court’s findings, the trial court’s decision should be upheld. Tibbs, 397 So. 2d at 1123.

II. THE TRIAL COURT CORRECTLY FOUND THE OFFICER’S TESTIMONY COULD NOT BE RELIED UPON TO ESTABLISH THE BASIS FOR A LAWFUL STOP, AND PROPERLY SUPPRESSED THE EVIDENCE OBTAINED AS A RESULT OF THAT STOP

If a witness has no present recollection or memory of the events, the witness cannot testify to those events. K.E.A. v. State, 807 So.2d 410, 411 (Fla. 3d DCA 2001). Counsel may show the witness a writing or other object in an attempt to refresh the witness’s recollection. Id. If the witness’s memory is jogged, the witness may testify from their present memory, pursuant to §90.613(1), Fla. Stat.

In K.E.A., as in the instant case, the police officer’s memory was never jogged by the arrest report. Id. The K.E.A. court held that because the witness’s memory was not refreshed, his testimony could not form the basis of the adjudication of delinquency. Id. In the instant case, Officer M. testified, both at the DMV Hearing, and during the suppression hearing, that he did not have an independent recollection of the stop. (R. 211). Importantly, Officer M. also testified there was nothing that had happened, between the DMV Hearing and the date of the suppression hearing, to refresh his recollection of the events surrounding the stop. (R. 211). Therefore, his memory was not refreshed. Because Officer M. did not have a present recollection or memory of the events surrounding the stop of the Defendant, his testimony could not form the basis to establish a lawful stop of the Defendant.

The trial court properly found that because the officer did not have an independent present recollection of the stop, his testimony regarding the stop was insufficient as a matter of law. No other evidence was offered or introduced by the State to establish a lawful stop. Because there was no competent, substantial evidence to establish probable cause for the stop, the trial court’s order granting the Defendant’s Motion to Suppress should be affirmed.

CONCLUSION
WHEREFORE, Defendant respectfully requests this Court to affirm the trial court’s Order Suppressing Evidence in this matter, because the trial court properly found that the officer had no present recollection or memory of the stop and that the officer’s testimony could not be relied upon to establish the basis for a lawful stop.