INTROD TO THEATRE
INTROD TO THEATRE THE 2000
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Date Created: 09/17/15
IN THE SUPREME COURT OF FLORIDA CASE NO SC061408 JOHN F MOSLEY Appellant vs STATE OF FLORIDA Appellee APPELLANT S INITIAL BRIEF On direct review from a decision of the Circuit Court of the Fourth Judicial Circuit imposing a sentence of death RYAN THOMAS TRUSKOSKI ESQ RYAN THOMAS TRUSKOSKI PA FLORIDA BAR NO 0144886 PO BOX 568005 ORLANDO FL 328568005 407 8417676 COUNSEL FOR APPELLANT TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS V PREFACE xii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENTS 23 ARGUMENT 1 THE DUE PROCESS CLAUSE OF THE FLORIDA CONSTITUTION PROVIDES MORE PROTECTION TO CRIMINAL DEFENDANTS THAN THE UNITED STATES CONSTITUTION AND THIS COURT SHOULD APPLY THE DOCTRINE OF PRIMACY TO THIS CASE 24 ARGUMENT 2 THE PROSECUTOR S IMPROPER AND INFLAMMATORY REMARKS DEPRIVED THE DEFENDANT OF A FAIR TRIAL 28 ARGUMENT 3 THE TRIAL COURT ERRED IN RULING THAT THE RECORDED HUSBANDWIFE JAIL CONVERSATIONS WERE ADMISSIBLE 41 ARGUMENT 4 THE TRIAL COURT ERRED IN DENYING THE DEFENSE S MOTION FOR A CONTINUANCE AND FOR A MISTRIAL BASED ON A DEFENSE WITNESS FAILING TO APPEAR AT TRIAL 53 ARGUMENT 5 THE TRIAL COURT ERRED IN INCLUDING A VIDEOTAPE OF THE DEFENDANT IN CHAINS SHACKLES AND JAIL GARB AMONG THE MATERIALS DELIVERED TO THE JURY ROOM IN VIOLATION OF ITS OWN ORDER 58 ARGUMENT 6 THE TRIAL COURT ERRED IN EFFECTIVELY RULING THAT A DOUBLE MURDER AUTOMATICALLY SUFFICES AS THE PREVIOUSLY CONVICTED OF ANOTHER CAPITAL FELONY AGGRAVATING CIRCUMSTANCE 61 ARGUMENT 7 THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT 65 ARGUMENT 8 THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S MOTION FOR A NEW TRIAL BECAUSE THE GUILTY VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE 66 ARGUMENT 9 THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S REQUEST FOR THE STANDARD JURY INSTRUCTION WHICH CONCERNS PRESSURE OR THREAT AGAINST A WITNESS 70 ARGUMENT 10 FLORIDA S DEATH PENALTY SCHEME VIOLATES DUE PROCESS THE SIXTH AMENDMENT AND RING v ARIZONA AND ITS PROGENY 73 ARGUMENT 1 1 THIS COURT S COMPARATIVE PROPORTIONALITY REVIEW OF SENTENCES OF DEATH IS UNCONSTITUTIONAL 82 iii ARGUMENT 12 THE DEFENDANT S SENTENCE OF DEATH IS DISPROPORTIONATE 89 ARGUMENT 13 LETHAL INJECTION AND FLORIDA S LETHAL INJECTION PROCEDURES ARE UNCONSTITUTIONAL 91 CONCLUSION 99 CERTIFICATE OF SERVICE 99 CERTIFICATE OF FONT COMPLIANCE 100 TABLE OF CITATIONS M Apprendi V New Jersey 530 US 466 2000 7376 Anderson V State 841 So2d 390 Fla 2003 84 BH V State 645 So2d 987 Fla 1994 24 Baze V Rees 217 SW3d 207 KY 2007 95 Bertolotti V State 476 So2d 130 Fla 1985 3841 Blakely V Washington 542 US 296 2004 76 Bolin V State 793 So2d 894 Fla 2001 41 Brooks V State 762 So2d 879 Fla 2000 3040 Brown V State 484 So2d 1324 Fla 3d DCA 1986 24 Bgan V State 533 So2d 744 Fla 1988 35 Butler V State 842 So2d 813 Fla 2003 35 Carpenter V State 785 So2d 1182 Fla 2001 70 Chandler V State 744 So2d 1058 Fla 4th DCA 1999 70 Charton V State 716 So2d 803 Fla 4 h DCA 1998 26 Coday V Sate 946 So2d 988 Fla 2006 77 Cohen V Pollack 674 So2d 805 Fla 3d DCA 1996 40 Conde V State 860 So2d 930 Fla 2003 35 Crump V State 622 So2d 963 Fla 1993 28 Cunningham V California 127 SCt 856 2007 76 Dufour V State 622 So2d 963 Fla 1993 28 EVitts V Lucey 469 US 387 1985 88 Fowler V State 921 So2d 708 Fla 2d DCA 2006 65 Gera1ds V State 674 So2d 96 Fla 1996 56 Goutis V Express Transport 699 So2d 757 Fla 4th DCA 1997 40 Harbison V Litt1e 3061206 MD Tenn September 19 2007 9596 Ha11 V United States 419 F2d 582 5th Cir 1969 30 Henrion V State 895 So2d 1213 Fla 2d DCA 2005 34 Hill V State 921 So2d 579 Fla 2006 94 H1ad V State 585 So2d 928 Fla 1991 24 Hoggins V State 689 So2d 383 Fla 4th DCA 1997 26 In re Elkins 144 Ca1App4th Cal App 1 2006 87 In re Forfeiture of 8 48900 603 So2d 96 Fla 2d DCA 1992 24 Jackson V State 603 So2d 670 Fla 4th DCA 1992 52 Johnson V State 720 So2d 232 Fla 1998 90 Johnson V State 451 So2d 1024 Fla 1St DCA 1984 50 Kilgore V State 933 So2d 1192 Fla 2d DCA 2006 63 Vi King V State 623 So2d 486 Fla 1993 40 King V State 390 So2d 315 Fla 1980 63 Koon V State 463 So2d 201 Fla 1985 50 Knight V State 746 So2d 423 Fla 1998 3162 Lanzafarne V State 751 So2d 628 Fla 4 h DCA 1999 86 Lee V State 422 So2d 928 Fla 3d DCA 1982 26 Lightbourne V McCollurn 969 So2d 326 Fla 2007 95 MEK V RLK 921 So2d 787 Fla 5th DCA 2006 26 Maxwell V State 490 So2d 927 Fla 1986 28 Metropolitan Dade Cty V Zapata 601 So2d 239 Fla 3d DCA 1992 40 Norman V Gloria Farms Inc 668 So2d 1016 Fla 4th DCA 1996 40 Pagan V State 830 So2d 792 Fla 2002 65 Pait V State 112 So2d 380 Fla 1959 30 Pardo V State 563 So2d 77 1990 62 Pell V Procunier 417 US 817 1974 5l Proffitt V Florida 428 US 242 1976 79 Pub Health Tr ofDade CtV V Gerber 613 So2d 126 Fla 3d DCA 1993 32 Pulley V Harris 465 US 37 4454 1984 87 Rhodes V State 547 So2d 1201 Fla 1989 39 Ring V Arizona 536 US 584 2002 7680 Robinson V State 462 So2d 471 Fla 1St DCA 1984 69 Robinson V State 561 So2d 419 Fla 1990 53 Rolling V State 944 So2d 176 Fla 2006 94 Roper V Simmons 543 US 551 2005 98 Rutherford V State 926 So2d 1100 Fla 2006 94 Ruiz V State 743 So2d 1 Fla 1999 28 Schwab V State 969 So2d 318 Fla 2007 95 Simmons V State 934 So2d 1100 Fla 2006 3485 Sims V State 754 So2d 657 Fla 2000 94 Smith V State 344 So2d 915 Fla 151 DCA 1977 4150 Spencer V State 615 So2d 688 Fla 1993 22 State V Barguet 262 So2d 431 Fla 1972 25 State V Burris 875 So2d 408 Fla 2004 61 State ex rel Davis V City of Stuart 97 Fla 69 1929 25 State V Grif n 347 So2d 692 Fla 151 DCA 1977 25 State V McFadden 772 So2d 1209 Fla 2000 63 State V Sireci 399 So2d 964 Fla 1981 81 State V Slappx 522 So2d 18 Fla 1988 27 Viii State V Steele 921 So2d 538 Fla 2005 7477 Stephens V State 787 So2d 747 Fla 2001 66 Sufour V State 905 So2d 42 Fla 2005 28 Taylor V State 583 So2d 323 Fla 1991 2439 Thomas V State 574 So2d 160 Fla 4th DCA 1990 69 Tibbs V State 397 So2d 1120 Fla 1981 69 Traylor V State 596 So2d 957 Fla 1992 24 Tuilaepa V California 512 US 967 1994 87 Turner V California 498 US 1053 1991 87 United States V Booker 543 US 220 2005 76 United States V Dawson 563 F2d 149 5 h Cir 1977 59 United States V Gainey 111 F3d 834 3rd Cir 1997 40 United States V Madoch 149 F3d 596 7 h Cir 1998 52 Urbin V State 714 So2d 411 Fla 1998 32 Valle V State 394 So2d 1004 Fla 1981 53 Wasko V State 505 So2d 1314 1987 62 Whith V State 2008 WL 321509 Fla 2008 27 Woodel V State 804 So2d 316 Fla 2001 41 Woods V State 733 So2d 980 Fla 1999 8389 Yokie V State 773 So2d 115 Fla 4th DCA 2000 52 OTHER AUTHORITIES Fla Stat 90504 49 Fla Stat 7750211 63 Fla Stat 921141 73 Fla Stat 9211415b 6264 Fla Stat 922105 91 American Bar Association Evaluating Fairness and Accuracy in State Death Penalty Systems The Florida Death Penalty Assessment Report September 17 2006 84 New Jersey Death Penalty Study Commission Report January 2 2007 98 PREFACE This is an appeal from a judgment and sentence imposing the death penalty from the Circuit Court of the Fourth Judicial Circuit in and for Duval County Florida the Honorable Michael Weatherby presiding John F Mosley was the defendant in the trial court and will be referred to as defendant in this brief The State of Florida was the plaintiff in the trial court and will be referred to as State in this brief The defendant is appealing his convictions and sentence of death The record will be cited as R volume number p page number xi STATEMENT OF THE CASE AND FACTS BACKGROUND Defendant John Mosley and Carolyn Mosley had been married for over 15 years R19 p 18811882 Nevertheless Carolyn Mosley was aware that her husband had an extramarital affair She knew her husband had cheated on her R19 p 1 502 Defendant John Mosley had in fact been seeing a woman named Lynda Wilkes R12 p 620 Lynda Wilkes had an adult daughter named Marquita Wilkes According to Marquita Wilkes the Defendant would visit Lynda Wilkes during the evening He would sometimes bring clothes for Lynda Wilkes new baby J ayQuan Mosley R13 p 620 Marquita Wilkes was of the understanding that the infant JayQuan Mosley was born of Defendant John Mosley R13 p 637 On December 27 2003 the Florida Department of Revenue served Defendant John Mosley with a paternity lawsuit in order to force the Defendant to pay child support for J ayQuan Mosley R15 p 1055 Approximately two months later a default paternity judgment was entered against the Defendant That default paternity judgment required the Defendant to pay 35 per week child support for J ayQuan Mosley R15 p 105 61057 Eleven days later on March 12 2004 the Defendant led a motion to set that default paternity judgment aside R15 p 1507 On April 21 2005 the Defendant stopped by Lynda Wilkes home He visited with her and Marquita Wilkes R8 p 630631 The Defendant and Lynda Wilkes eventually went into a back bedroom and had sexual intercourse R8 p 623 R14 p 915 R14 p 964 969 They made plans to meet again the following day at the nearby JC Penney shopping center R14 p 980981 On this same day the Defendant arranged for a plumber to appear at the home shared by Defendant and his wife the following day in order to repair a leaky toilet R18 p 17511752 1755 The following day April 22 2004 Lynda Wilkes rose and prepared her Children for school R8 p 642 She informed her second daughter Naquita Wilkes that she would be taking JayQuan Mosley to the JC Penney store to meet with the Defendant and to do some shopping R8 p 643 This was the last time Naquita Wilkes ever saw Lynda Wilkes or J ayQuan Mosley R8 p 624645 For this reason April 22 2004 is referred to as the day of the disappearance in this brief xiii CODEFENDANT BERNARD GRIFFIN S DESCRIPTION OF THE MURDERS Bernard Grif n was 15 years old at the time of the disappearance R1 p 2 Even though he himself was a suspect and ended up only being charged as Defendant s accessory he described how Lynda Wilkes and JayQuan Mosley were killed and how their bodies were disposed of R13 p 670 According to Bernard Grif n the Defendant wanted a baby killed R13 p 680 He offered Bernard Grif n 15000 to kill it R13 p 681 The Defendant instructed him to enter Lynda Wilkes house and shoot the baby and anyone else that got in the way R13 p 682 The Defendant gave Bernard Grif n a diagram of Lynda Wilkes house The Defendant told Bernard Grif n that he would provide him a gun R13 p 682 On April 22 2004 the day of the disappearance Bernard Grif n telephoned the Defendant and asked the Defendant to drive him to the home of Ms Kenya Mobley Kenya Mobley lived in the Kendall Court Apartments R13 p 685 The Defendant drove his Chevrolet Suburban truck to Bernard Grif n s home R13 p 685686 The Defendant pointed out to Bernard Grif n that the lady and the baby were sitting in the truck R13 p 686 Bernard Grif n got in The Defendant drove past the Kendall Court Apartments R13 p 688 and continued on to a dirtroad wooded area on the outskirts of town He instructed Lynda Wilkes to step out of the truck R13 p 689 She obeyed holding the infant JayQuan Mosley in her hands R13 p 689 The Defendant then grabbed Lynda Wilkes by her neck and strangled her R13 p 689 He placed a bag over her head and put her body in the back of his truck R13 p 691 The infant J ayQuan Mosley was on the ground crying At Defendant s instructions Bernard Griffin held open a plastic garbage bag The Defendant placed the crying infant in it tied it shut and placed it in the back of Defendant s truck R13 p 691692 The Defendant covered the bag and Lynda Wilkes body with a blue plastic tarp R13 p 693 The infant could still be heard crying R13 p 692 As they drove out of the wooded area the baby s crying stopped R13 p 692 The Defendant dropped Bernard Griffin off at Ms Kenya Mobley s home at the Kendall Court Apartments BERNARD GRIFFIN S TESTIMONY ABOUT THE BODYDISPOSAL TRIP According to Bernard Grif n the Defendant returned to Bernard Grif n s house around 1100 pm that same evening R13 p 695 Bernard Grif n climbed into the Defendant s truck and noticed a foul smell R13 p 696 The Defendant drove out of town Bernard Griffin remembered seeing a Gainesville sign The Defendant utilized his cell phone on the trip R13 p 696 They drove for like about close to an hour R13 p 697 and eventually ended up in a wooded area R 13 p 697698 Both of them donned gloves that the Defendant kept in the back of his truck R13 p 698 They removed Lynda Wilkes body The Defendant poured lighter uid on it and set it on re R13 p 699 The Defendant told Bernard Grif n that this was necessary because Lynda Wilkes had scratched him R13 p 699 The pair climbed back into the truck The Defendant continued driving away from Jacksonville for a couple of hours They ended up at a dumpster behind a WinnDixie supermarket R13 p 701 The Defendant removed the bag containing what Bernard Grif n assumed was the dead baby The Defendant placed it in the dumpster R13 p 701 The Defendant instructed Bernard Grif n to remove his gloves and shoes and place them in the dumpster as well R13 p 70 1 On the way back to Jacksonville The Defendant gave Bernard Grif n 100 cash R13 p 702 The Defendant stopped at an apartment building took back 20 of cash from Bernard Grif n and asked him to wait in the truck for a couple of minutes The Defendant went brie y to the front door of the apartment and returned to the truck R13 p 702703 He drove Bernard Grif n home By the time they arrived it was daylight R13 p 703 Shortly thereafter the Defendant contacted Bernard Grif n and asked for assistance in nding a tag to switch with the one on his truck R13 p 704 The Defendant informed Bernard Grif n he was going to switch the tires on his truck so the police could not match them to any tire tracks they had left behind R13 p 704 Eventually Bernard Grif n went to the police Over the course of several interviews he told them what he remembered of the homicides R13 p 704 SEARCH FOR VICTIMS BODIES Bernard Grif n was able to take the police to the purported killing site It was off Armsdale Road on the outskirts of Jacksonville R15 p 10881091
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