IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, STATE OF FLORIDA STATE OF FLORIDA, Plaintiff, vs. CLERK CASE 2011CF 2152 JOHN ALLEN LEE Defendant. STATE'S RESPONSE TO DEFENDANT'S MOTION FOR NEW TRIAL THE State of Florida, by and through the undersigned Assistant State Attorney, asks the court to deny the defendant's motion for a new trial. In support of the State's position, the undersigned states as follows: Under Fla. R. Crim. P. Rule 3.600 (b), the court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby. (1) The defendant was not present at any proceeding at which the defendant's presence is required by these rules. (2) The jury received any evidence out of court, other than that resulting from an authorized view of the premises. (3) The jury, after retiring to deliberate upon the verdict, separated without leave of court. (4) Any juror was guilty of misconduct. (5) The prosecuting attorney was guilty of misconduct. (6) The court erred in the decision of any matter of law arising during the course of trial. (7) The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant. (8) For any other cause not due to the defendant's own fault, the defendant did not receive a fair and impartial trial. In his Motion for New Trial, The Defendant alleges that Para (5) the State is guilty of Prosecutorial Misconduct Para (6) the Court erred in the decision of any matter of law arising during the course of the trial Para (8) The Defendant did not have a fair trial. The Defendant bases his allegation of Prosecutorial Misconduct on three separate claims: 1) The State committed a Brady violation when it did not turn over exculpatory information received from Dorothy Stolte in an e-mail she sent the State on 9/12/2012. 2) The State provided false information in order to have the Court sign a material witness bond for Dorothy Stolte's incarceration prior to her trial testimony. 3) The State threatened Dorothy Stolte and coerced her into giving false testimony at trial. Brady Violation To establish a Brady violation the defendant has the burden to show (1) that favorable evidence -either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. The ultimate test in determining if a Brady violation occurred is "whether confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different." Young v. State, 739 So.2d 553, 559 (Fla. 1999). Dorothy Stolte's e-mail hearsay statement did not negate the Defendant's guilt. Rather it corroborated the State's argument that the Defendant's motive for killing Ms Nabergall and Mr. Salter was his anger about their friendship and the fact that they were spending time together. See State's Exhibit 1- (provided to defense in discovery) Dorothy Stolte's interview with law enforcement p. 20, in which she states she did not know Traci had a boyfriend. See State's Exhibit No. 2 - (provided to defense in discovery) Steven Stolte's interview with law enforcement (p 32) in which he describes that Traci moved her belongings out of Jason's house on or about the day she died. Stolte's e-mail message was not exculpatory and certainly not favorable to the accused. In fact it was harmful for the defense. The State's theory of the case and the evidence that unfolded during trial was that John Lee killed Traci Nabergall and Jason Salter because Lee was jealous and angry that Traci was spending time with Jason Salter. Other witnesses testified that Lee was disturbed about Jason and Traci spending time together, for example: Defendant' statement to Nancy Williams, the Pretrial Services coordinator. "I better not ever catch that guy speaking to my girl again or there will be further problems" Defendant's statement to Jessica Tighe via telephone regarding if Defendant saw Traci at Jason's house again, he would kill him: And did you say that you heard him say about ah, if he caught her back down there he is you know, kill him? Yes. The e-mail message from Dorothy Stolte re: hearsay statements about Jason Salter and Traci Nabergall was not inconsistent with or materially different from Dorothy Stolte's recorded interview to law enforcement on 1/27/11. In that statement, she acknowledges that on the day of the murders, she was told Traci had a boyfriend. [See attached State's Exhibit 1, p. 20.] Dorothy Stolte's recorded statement and transcript were previously provided to the Defense by the State. The defense had these hearsay statements by Stolte, could have deposed her, and could have vigorously cross-examined her on the stand about what, if anything, she knew firsthand regarding Traci's "boyfriend." The Defendant has not demonstrated the materiality of Stolte's e-mail message or that he was prejudiced by not having Stolte's e-mail pursuant to the Brady, Kyles, and Strickler standard. Under these cases, the Defendant must show that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Strickler, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555). The standard for determining materiality was enunciated in Strickler v. Greene, 527 U.S. 263, 290 (1999) as follows: The materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the whole question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Material Witness Bond The State was compelled to file a Motion to Set Material Witness Bond when Dorothy Stolte responded to a telephone call from the State Attorney's office support staff a few days before the State began its case in-chief. During the phone call with Mary Sue Borome, Dorothy Stolte stated: I am not talking to Karen or coming to court because Karen is a liar. On 3/11/13 Dorothy Stolte told Detective Chad McDonald I don't trust Karen and will not testify. As to Ms. Stolte's testimony about the murder weapon itself, she gave sworn testimony to Sgt. Christopher Montalbano on January 27, 2011 acknowledging that she bought the defendant a knife as a Christmas gift. Detectives retrieved Lowe's video surveillance and a receipt, both of which verified that Dorothy Stolte purchased a knife set containing a knife similar to that which was found in a storm drain within walking distance of the Defendant's residence and the crime scene. The defendant told Rhonda Porter that he had discarded the murder weapon in a storm drain near his house. The logical inference and undisputed evidence is that Dorothy Stolte purchased the murder weapon that John Lee used to kill his victims and later threw into a storm drain near his home. Witness tampering, Suborning Perjury, and Threatening a Material Witness. This is a baseless allegation by an antagonistic witness with close ties to the Defendant for over twenty years. Dorothy Stolte had to be jailed by the court to guarantee her presence at trial. Three days after the murders, this witness gave a statement to law enforcement regarding the possible weapon used to murder Traci Nabergall and Jason Salter. Her trial testimony, which was not prompted or coerced by prosecutors, was consistent with her statements to SSO detectives Her statements to law enforcement and her trial testimony were corroborated by Lowes' store records and video surveillance and by the defendant's own statements to Rhonda Porter about discarding the murder weapon. This witness had been hostile and uncooperative from early in this proceeding. Detective McDonald visited Stolte on August 31, 2012, and Stolte told him that some "attorney or investigator" came to her house and told her she did not have to testify and that the State could not force her to testify. Stolte also told Det. McDonald that the "investigator" showed her a picture of a knife. Stolte claimed it was a very large knife that could not have been the knife she bought Lee. She told McDonald that the investigator also told her that none of Ms. Nabergall's blood was on the Defendant and the State did not have a case against John Lee. The State had no choice but to move for a Material Witness Bond when Dorothy Stolte stated that she would not appear for trial. Ms. Stolte was a material witness necessary to establish the relevance of the knife found in the storm drain and to tie the knife to the Defendant because she had purchased that knife or a similar knife for him. The State did not suggest or tell her what her testimony should be, nor did it threaten her. These allegations are completely meritless. Today, the State obtained four jail calls made by Dorothy Stolte which provide further evidence of her intended lack of cooperation as a material witness. Specifically, she admits in these phone calls that she bought the knife for the defendant as a Christmas gift, that she would not appear at trial, and that if forced to testify at trial she would claim that she could not remember. These jail calls were e-mailed to the defense today 6/17/13 at 4:36 pm and will be provided to the Court at the status conference tomorrow 6/18/13. Wherefore the State respectfully requests that this Honorable Court deny this Motion for New Trial. ED BRODSKY STATE ATTORNEY TWELFTH JUDICIAL CIRCUIT ____________________________________ Karen Fraivillig Assistant State Attorney 2071 Ringling Blvd, Suite 400 Sarasota, FL 34237-7000 (941)861-4434 Florida Bar No 569739 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Motion In Limine has been furnished by electronic mail to the Honorable Peter Dubensky and to Attorney Carolyn Schlemmer, counsel for the defendant, this 17th day of June, 2013. Karen Fraivillig Assistant State Attorney