Good Morning, Your Honor

Good morning, Your Honor. May it please the Court and Mr. Fishkin; my name is Kevin Beck and I have the privilege of representing JJ Daiak in this matter. It’s a difficult matter; I’ll be very candid with the Court. It’s difficult because, quite frankly, while we perceive there to have been much error, repeated and significant error, at trial, very, very little was objected to, and so for the most part, this court is going to have to deal with these errors as we perceive them, as we argue them, from the standpoint of whether or not they are fundamental. On appeal, I raised four specific issues. The fifth issue that was raised was a cumulative error issue. What I’d like to do is to begin by discussing the second and third issues that were raised. Those issues deal primarily with the question of whether or not prosecutorial misconduct occurred, primarily during the closing arguments by the state in this matter against JJ Daiak. I think that probably the easiest way to discuss this matter; first of all to describe the nature of the arguments that were made by the state in the closing arguments and the prevalence of those arguments. Essentially, what the state was arguing to the jury was not the facts of the case but that in fact, the idea that the jury had an obligation and responsibility to those deputies who had come before the court, come before the jurors, testified and had arguably placed their lives, their safety on the line on behalf of, not just the individuals involved in this particular case, but the jurors themselves. What the prosecutor argued was that these individuals, unlike the jurors, and the argument went directly to the jurors. The argument was, you, as jurors, we as citizens, enjoy the comfort, the safety, the peace, of understanding that when we leave our home, to go to work, to go to church, to go to stores, what have you, we anticipate that we are going to come home safely, but that these officers, who are acting on your behalf, who are acting out of concern for your safety, for your well-being, don’t have that same expectation., I think that if this whole argument were sort of turned on it’s head, and we evaluate it from the perspective of what would have happened if this same argument had occurred during voir dire; that any of you that would have necessarily been sitting as the trial judge would have had no hesitance in having granted a motion for cause. If in fact, any juror had told the court in response to any that their primary concern in sitting as a juror case was to insure the safety and the well-being of the officers who had necessarily testified in this matter and it would be serving them back into their communities, in their neighborhood from time hence forward. And that’s exactly what happened in this matter; what the state was attempting to do was to establish this idea that the jurors primary responsibility was not to weigh the evidence, not to apply the law, but to insure the that these officers were vindicated in their efforts on behalf of the jurors, on behalf of the citizens of Pasco County. This intrigue by the prosecutor wasn’t singular, it wasn’t isolated, it was the primary thrust of her argument, it was prevalent through her argument, it was repeated at the close of her argument, with the simple statement in the time it would get them home safely the members of the jury. It then tied into the issue that we raised, the third issue that we raised on the third issue and that issue was to of whether or not the prosecutor improperly commented on matters that were not in evidence. If the court recalls, what occurred there, was that a photograph was placed into evidence, a photograph that was in the bedroom where JJ Daiak

1 had in fact had been sleeping at the time that the officers had come to his home. If you recall, this occurred in the morning hours of September 24th, September 25th of 2004. Hurricane Francine was moving into the area; the testimony regarding the nature of the climate and the environment at the time was at times very dynamic, was at times very blustery, would be at times very calm, but what became very critical during the closing argument, during the trial was whether or not JJ Daiak had necessarily attempted to contact 911 or anybody in response to what he perceived and what he testified to. Now the state’s case was necessarily circumstantial as to just exactly what it was that JJ Daiak necessarily perceived that night. There was no direct evidence that he had any familiarity or awareness that the individuals that were at his home; individuals who had awakened him with the kicking, thudding, pounding at the door were necessarily law enforcement. The testimony was not that law enforcement had appeared using lights and sirens, that they had driven up to investigate a possible domestic matter. There was no indication or no familiarity on the part of any of the officers that testified that there was ever an eye-to-eye contact made between JJ Daiak and the officers that were present. The only information that gives any credence to the idea that JJ Daiak knew the individuals were present and were potentially law enforcement was the fact that he responded to their calls from the door, outside the door, that being, in his words, “Get out of my house”, “Get the F out of my house”, and there were subsequent to initial reports, “Die, die, die”. Now part of the problem that we have, any time that we are talking about prosecutorial misconduct is whether or not the error is fundamental or whether it goes to the heart of the case itself. And this court has frequently found that even though prosecutorial misconduct has occurred, if the nature of the evidence is so overwhelming that and so strong that those comments would necessarily have not played a role in the verdict that the jury would eventually determine that they may be deemed harmless error. I discussed the question of the evidence, in the circumstantial nature, the evidence to point out to this court that, in fact, the evidence in this case was not overwhelming. The evidence in this case was not that strong as the state argued that in their closing argument. The issue for the jury to determine was whether or not JJ Daiak, whether or not the Appellant, was aware that the individuals that were at his door that night were necessarily law enforcement, because it affects the legal nature of what he was or how he reacted. The prosecutor statements repeated and pointed, asking the jury for the sympathy, to sympathize with those deputies, to send a message to those deputies in the community that we were going to protect those deputies, as opposed to focusing on the evidence that was submitted to the jury in the law as they were instructed, necessarily undermine the due process rights of JJ Daiak, undermine his ability to receive a fair trial. We can’t, I can’t explain to the court why they necessarily were not objected to; they were clearly objectionable, but they were not. The key, of course, is to determine whether or not they were fundamental or whether or not the evidence was so strong as to overcome fundamental nature of the error and we would argue that, in fact, they were not. In fact, that takes us to the first issue that was raised on appeal, and that is whether or not there was sufficient evidence to allow the court to deny the defense’s motion for judgment of acquittal,

2 particularly after the defense was presented to the jury. We have a problem in the record here in that the record doesn’t describe what was necessarily argued on this point. All we have is a side-bar conference that was unrecorded, and then a comment by the prosecutor as they are leaving the side-bar by the way the judge moved for a judgment of acquittal, the defense saying everything we presented and the court saying, denied. What that fails to instruct us on is whether or not the court focused on whether the state had overcome or had overcome JJ Daiak’s testimony, describing or overcoming the nature of the circumstantial evidence that would necessarily have demonstrated that he had no knowledge that those individuals were law enforcement, and as a result of that, have acted appropriately and had not committed the crimes of aggravated assault on a law enforcement officer. We don’t know whether or not the court ever considered the question as to what this court looked at in the matter of the state versus with the 2007 opinion by the 2nd DCA, where this court has required the state to establish that the defendant had specific intent to do violence to the others. What we have here is circumstantial evidence, circumstantial evidence that Mr. Daiak was aware of the presence of somebody and responded verbally to them and then responded by firing his handgun. We have no evidence, no direct evidence that Mr. Daiak knew that those individuals were anybody other than, as he testified to, looters, burglars or murderers. The denial of judgment of acquittal after the state’s case in chief was appropriate. But after JJ Daiak had testified in his defense, after he had described for the court and for the jury those circumstances which were both reasonable and innocent the state would necessarily have the burden of overcoming that because their case was dependent on these circumstances. Lack of direct evidence demonstrating his knowledge that they were law enforcement. They could not do that.

Judge: With regard to that point, there were four counts charged in this case. Is that correct?

Beck: That’s correct, Your Honor.

Judge: Would your client arguably have to know of the presence of each of the four officers, or for the presence issue, specific knowledge of each of their presence, all four counts? For example, you said he heard one voice or he heard somebody. Would he have to know that there was more than one, for four counts to stand up?

Beck: No, as a matter of law, he would not. As a matter of law, if it was his intent to do violence and that violence resulted in the well-founded fear of four individuals, based upon his acts that would legally constitute an aggravated assault count. So our argument is not that the numbers of counts are inappropriate or are extreme as a result of the fact that, of course, he only fired the two rounds as opposed to firing rounds at all four individuals on an individual basis. The argument is whether or not the state overcame.

3 Judge: So you are saying that, if the deputy testified “I yelled out Sheriff’s Office”, or whatever, identified himself, and the defendant takes the stand and said “I never heard that” then the state has got to come back with more evidence to show that in fact he didn’t hear because it’s only circumstantial that he did.

Beck: Well, I think, under the circumstances in this case, that’s correct. The circumstances in this case are peculiar because generally speaking, there has to, you would have some knowledge, some evidence,

Judge: The circumstances are very clear that he heard something and he yelled back. And the issue is whether he heard them identify themselves as law enforcement, by which he is now on notice, or he didn’t hear and he had the right to presume that they were a burglar or house-invader or whatever else. But isn’t that strictly just an issue of fact, as opposed to saying that, well the state’s not going to come up Well, we know he saw us because we saw the white of his eyes, or we know he saw our uniform because he yelled back something in regard to The sheriff identified himself; the man responded; why isn’t that just the juries determination as to whether

Beck: Well, I think that’s why the Swift case is so very, very important, because in the Swift case, you had an individual who had been stopped, whose vehicle had been blocked by law enforcement, by deputies, who attempted to leave that site where he had been blocked in, and eventually was convicted of an aggravated assault with a deadly weapon on the deputies who had already approached him and had been near his vehicle.

Judge: But in that case, the issue was whether he knew the man, the deputy was behind his car, because the deputy was beside his car one moment; he began to back up and the issue is whether he knew the deputy had moved behind; that’s a different set of facts, because you’ve got a moving target out there, and the issue of whether he knew if the deputy had intentionally moved or whether he should have known that he had moved. That’s a different issue than somebody saying “Sheriff’s Department”, he responds and then because he comes in and says “Oh, I didn’t hear him say Sheriff's, I just heard him yelling”. That takes more to say he was on notice for a separate jury issue

Beck: I don’t disagree with what the court has ruled, or with what the court is arguing here, uh, with the exception to the fact that in this particular incident, you’ve got very limited other than the response “Get out of my house”. You also have to look at the circumstances in this case. There, in Swift, you’ve got deputies the defendant knew that he had stepped behind the car at the time the individual had backed out. Here, there’s the distinct question as to what not only what Mr. Daiak knew, those circumstances are exactly the environment at the time. His testimony supported the deputies at trial who indicated that at no time was there any response from Mr. Daiak that would have directly demonstrated that he had any

4 familiarity with, in fact, who they were, other than the possibility that they were burglars or that they were looters. His response was “Get the hell out of my house”. And that is not inconsistent with someone who’s been awakened in the middle of the night, uh, by individual strangers who were not invited to his house, who hears something amongst the roar of the storm or fires the rounds that and gets us to issue four as to whether or not this should necessarily be deemed a deadly weapon, as the result of the nature of which it was utilized on that particular night

Judge: But suppose this length of time reading this as I understand, Deputy Curtis sent her in the house. She comes out and reports to them something about him sitting up with a gun or whatever, and then the deputies approaching the house. What’s the difference in time?

Beck: Well, there’s a period of time because as the record demonstrates, not only did she leave the house, but then she went to her mother, ensured that her mother was okay and had her mother leave the area before approaching the deputies that were present and advising them of what she had seen, and so…

Judge: How long? Are we talking about hours?

Beck: I don’t think the record actually demonstrates that. I don’t think any questions were directly asked, but I think that you can gather from the nature of the testimony that it took a period of time: five or ten, fifteen minutes before she necessarily

Judge: Okay, so the jury’s got an indication that somebody’s been in the house and seen him awake, sitting there with a gun to his head, comes back out and tells the deputies, but now we’re to believe that man is so soundly asleep that when they yell “Sheriff”, that he didn’t hear them. Are those the facts the jury’s got to wade through? If so, why is it their job to wade through it?

Beck: That they heard something, as opposed to having heard something specific. And the specific thing that he would necessarily have to hear in order to be guilty of this crime was that “This is law enforcement” because there’s no other evidence

Judge: But you’re saying that he was so sound asleep that he didn’t hear them. But she had just come out of the house, within some recent period of time and says he’s got a gun to his head.

5 Beck: I think his testimony was that he was awakened by the pounding at the door.

Judge: That’s a potential conflict that the jury would be presented because the girlfriend says she came out and says he’s sitting there with a gun pointed to his head.

Beck: But there’s no evidence that he necessarily responded to her presence. Uh, there are two indications that she walked into the house, she saw him and then she left. There’s no indication that there was a conversation. There’s no indication of anything having transpired between the two of them.

Judge:

Beck: I would appreciate it if the court would give me.. That’s fine, um; I’ll reserve my final minute for Mr. Fishkin. Thank you.

Fishkin: If the court please, Richard M. Fishkin on behalf of the state of Florida. The problem that I think has become readily apparent is that, in order to accept the Appellant’s argument, you have to accept the fact that the jury accepted 100% the appellant’s testimony and disregarded 100% the state’s testimony. And, of course, that’s the whole idea of a motion for Judgment of Acquittal. Well, if there is a contradiction in fact that’s up to the jury to make the determination of fact. That’s their job.

Judge: But if that is their job, then you’ve got these contradictions: why does this appeal to the jury to protect the police officers? Why didn’t they just weigh right into their balancing act and make it fundamental? That’s just something, that’s just seems like you’ve got a difficult job deciding who you’re gonna believe and who you’re not going to believe and, by the way, we want you to make sure you’re gonna take care of these law enforcement officers.

Fishkin: Because, first of all, if this was so offensive and so obvious to defense counsel, he should have objected; he didn’t object. Had he objected, that was a vehicle to create a curative instruction, if one was necessary, and the judge could have easily have done that, but he just sat there, blissfully allowing all this to go by. Now that may be an issue for another day, but it’s not an issue now. This is not fundamental error. The prosecutor said that a number of times. The prosecutor also went over the facts of the case, and the facts of the case are a whole element. Judge Davis,

6 you brought up a very interesting point. This whole thing started with a 911 call. After the 911 call, the first deputy, Deputy Curtis arrived at the scene and met with the girlfriend, Ms. Vaillancourt. He sent her into the house to talk to the Appellant and ask him to come to the door and talk to us. Now, the record is silent as to what actually took place in the house, and we can get into that if you want, but that’s not really relevant, but the woman came out and said he’s sitting on the bed with a gun to his head, and the deputy then made the calls to get the Swat Team there or to get the, uh, it wasn’t the Swat Team, I think it was the Community Response Team and there was a whole litany, these six volumes of transcript about whether Deputy McVey, for instance, who was the one who was rapping on the door with his flashlight, saying “Pasco County Sheriff’s Office, Deputy McVey, please come to the door JJ, or Joe, we just wanna talk to you, you’re not in any trouble”, and he says “Get out of my house”. Well, I’m not in your house; we just wanna talk to you. Get out of my house. We’re not in your house, just come to the door, We wanna talk to you. Do you wanna die? Now is that the statement of a rational individual? Don’t forget, there was another issue in this case that the jury was well aware of; alcohol and guns don’t mix. And according to Vaillancourt’s brother, who was called as a defense witness, he and the Appellant had been drinking since 6 o’clock in the evening. They had gone to a bar. His fears were predicated upon the coming of a hurricane, yet when there’s a hurricane coming, and he’s going to a bar and drinking. They bought a bottle at the bar, they brought it back and they had more drinks. And then they had a fight, and the fight was over something the fact that the Appellant thought that Ms. Vaillancourt had done something inappropriate with her brother in law like flashing him. So Mitchell or Hancock, I’m sorry, the brother, left and told the mother to call 911 because something’s going to happen. We’re not talking about a long spread of time. We’re talking about things happening snap-snap-snap, like that. And then the police come. And after, by the way, they try and call; the first thing they do is try and call the house. Nobody answers the phone. That’s where the photograph becomes relevant, which was never really talked about, but that was the third issue on appeal, where the prosecutor showed the jury, so obviously she was doing something else beside just asking them to let the police officers go home. She shows them a photograph; they object to the photograph because no one’s described what the photograph shows, and she’s saying “Doesn’t that look like a phone?” And the object and And the curative instruction, saying “Ladies and Gentlemen of the jury, it’s up to you to look at the evidence, to weigh the evidence and decide what that evidence shows. But there’s a problem sitting right on, allegedly, sitting right on the safe in the bedroom. And that’s significant because, on cross-examination, the Appellant says, I only have a fan and an alarm clock in my bedroom, and the alarm clock wakes me up at 5:00 in the morning, so if he’s sitting there and the phone is ringing and it’s next to him, why doesn’t he hear it? Why doesn’t he answer it? He answers; he knows the police are out there. In any event, after the response of “Get out of my house; do you wanna die?” That’s what the defense is asking. and then he yells “Die, die, die”, and then he starts shooting. A 357 Magnum with a 3” barrel from someplace in the house. This guy is so precise that he can put a bullet within an inch of where he wants it?

7 Under the influence of alcohol, perhaps? The evidence in this case was overwhelming. If the comments by the prosecutor were in error, I don’t and I acknowledge that she shouldn’t have said it, but they didn’t go to the conclusion of this case. The evidence before this jury was so overwhelming that they didn’t need her to tell them to let the police go home. This is not a Golden Rule violation. She didn’t say put yourself in the position of this poor, dying victim; feel their pain, feel their blood. These police had already gone home. It was over. It was over two years before this ever happened, before this trial ever happened. Now as far as the motion for judgment of acquittal, at the end of the entire case, apparently the Appellant is relying on a reasonable inference of innocence in a circumstantial evidence case. This is not a circumstantial evidence case. Yes, there are circumstantial points in the case, but there are in most every case. Every case involving the intent of the defendant, how often do you have a defendant, as we almost used to have to prove in the old Civil Right’s cases of Federal trials the officers, I am hitting you to violate your Civil Rights. That was almost the level of proof we used to have to have. You can’t look in someone’s mind, unless they announce what their intention is and know what they’re intending, and know what they know. I don’t know what you’re thinking, about this argument, for instance. But essentially, at the end of the trial, the Appellant did as Appellants normally do at the end of the trial. I renew all the motions I made for the reasons I made them and the answer was the same; denied. It’s a question of the fact of the jury, which it was. I guess the Appellant already touched on the question of the non-deadly force instruction. I’ll only touch on it, it was never asked for, because it wasn’t appropriate, because a .357 Magnum with hollow point bullets can never be non- deadly force. It is, by definition, deadly force. Now, if you point a gun in somebody’s direction and pull the trigger, that’s deadly force. If you miss, everybody’s lucky. If you hit him, that’s a different story, then it’s not aggravated assault. Thank you, unless you have some other questions for me.

Beck: Judge Davis, I hope that you are thinking that it was clearly fundamental error. There’s no point in our returning here in a year or two with a 3850 appeal and that you’re going to demand a new trial, based on these circumstances. As to the issue, fundamental issue, regarding jury instructions, there’s no question that the jury instructions were appropriate, given the law in the 2nd DCA court. The argument that we attempted to make was that, under the circumstances, where you have an individual, and I would take an opportunity to debate Mr. Fishkin on the issue of whether or not it is always deadly force when you point a gun and shoot at somebody. Because, if in fact, that individual is standing two miles away, it’s not deadly force. In this instance, where the individual has testified that he is familiar with the weapon, he knows that there was no capacity for that bullet to pass through the furniture, through the walls, into cinderblock and so on, there was no effort by the state to counter that, clearly it was not deadly force. And given the Castle Doctrine’s otherwise application in this matter, I would also ask the court also to consider reviewing whether or not it would have been appropriate to have given a non-deadly force instruction in this matter would ask the court to reverse

8 the conviction and acquit Mr. Daiak or the alternative to find prosecutorial misconduct and grant him a new trial. Thank you.