E-Copy Received Aug 23, 2012 2:02 PM

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

GEORGE ZIMMERMAN, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________/ RESPONSE TO PETITION FOR WRIT OF PROHIBITION COMES NOW, the Respondent, State of Florida, pursuant to this Courts August 14, 2012, order to respond and states: PROCEDURAL AND FACTUAL STATEMENT Petitioner is charged by information with one count of second degree murder for the shooting death of Trayvon Martin on February 26, 2012. (Pet. Appx. Page 1). Petitioner filed a Motion to Disqualify Trial Judge on April 16, 2012, pursuant to Florida Rule of Judicial Administration 2.330(d)(2), i.e., that the judge is either an interested party to the matter, related to an interested party, related to counsel, or is a material witness for or against one of the parties to the cause. (Appendix A). In it, Petitioner argued that the first assigned judge, who is married to a law partner of the Nejame Law Firm, should be disqualified because Mark Nejame had been consulted by Petitioner and his family prior to Petitioner hiring his current attorney. Id. The first trial judge granted the motion on April 18, 2012, finding the cumulative effect of events provided a legally sufficient basis for the Court to CASE NO. 5D12-3198

grant the motion. (Appendix B). However, the first trial judge found the individual bases argued, i.e., that the courts husband is a partner at the Nejame Law Firm and Mark Nejame is acting as a legal analyst for CNN, were legally insufficient. (Appendix B). Moreover, the allegation that Mark Nejame spoke to Petitioner and his family and received confidential information was also legally insufficient as Petitioner admitted he had no knowledge of any communications between Mark Nejame and the judges spouse. Id. On April 20, 2012, Petitioner was before the successor judge, Circuit Court Judge Kenneth R. Lester, Jr., upon a motion to set bond filed by Petitioner. (Pet. Appx. Page 65). At the hearing, counsel for Petitioner advised the court that he was providing the court with Petitioners current passport which was the only

passport he had. (Pet. Appx. Page 363). Petitioners wife testified after being sworn. (Pet. Appx. Pages 367-368). Shellie Zimmerman testified that she had no income and no major assets that could be liquidated to assist in raising money for a bond. (Pet. Appx. Pages 370-371). She also was aware that they were seeking to have her husband declared indigent because they had no financial means to assist in paying for costs. (Pet. Appx. Page 371). The State asked Shellie Zimmerman about Petitioners ability to make bond amount. Petitioners wife said they had no money. (Pet. Appx. Page 382). The State inquired about the website, but Shellie Zimmerman indicated she currently did not know how much money had been raised; that her brother-in-law would know. (Pet. Appx. Page 382). She also denied even having an estimate of the 2

amount of money raised in the website or having spoken with her brother-in-law about the money. (Pet. Appx. Page 383). After argument of counsel, the judge set the bond at $150,000.00. (Pet. Appx. Pages 65,475,480,481,483). At a hearing held on April 27, 2012, on various motions, counsel for Petitioner disclosed the fact that approximately

$204,000.00 had been donated to Petitioner via the internet into a PayPal account. (Pet. Appx. Page 96). Counsel further advised the court that when Petitioner was before the court at the April 20, 2012, bond hearing, approximately $150,000.00 was available that was not disclosed to the court by the family. (Pet. Appx. Pages 96,97). However, according to counsel, Petitioner had not divulged this information to counsel until after the bond hearing. (Pet. Appx. Pages 95-96). Counsel explained that the money had been placed in a trust account under his control, and there was

$150,000.00 available to the family as of last Friday.1 (Pet. Appx. Page 97). The State argued that there was a change in circumstances involving the bond and asked that the court address the matter as the family had represented they had no money when, in fact, they did have money. (Pet. Appx. Page 98). The trial judge, while

At the hearing held on June 29, 2012, the accountant explained that a check for $122,393.00, dated April 25, 2012, was deposited into counsels trust account on April 27, 2012. (Pet. Appx. Page 143). The difference between the total amount transferred from the PayPal account into the Zimmermans accounts and the money deposited into counsels trust account is $49,486.96. (Pet. Appx. Page 144). 3

recognizing that false websites are created during disasters and such, asked counsel to discover the genesis of the account, who was in charge of the account, the date of any payments made to the account, and who has authority on the account. (Pet. Appx. Page 99). The judge instructed the defense to turn over that information to the State. Id. The court was unsure of its authority to order Petitioner to deposit or move any funds and needed to know who has authority over the account. (Pet. Appx. Pages 99-100). The trial judge entered an order on April 30, 2012,

referencing these matters addressed at the April 27, 2012, hearing, regarding a gag order. (Appendix C). In it, the trial court noted that documents with protected information should be filed in redacted form for the public record and in unredacted form under seal for in camera review. (Appendix C). On June 1, 2012, the State filed a motion to revoke bond. (Appendix D). In it, the State alleged that Petitioner and his family members misled the trial judge as to his possession of a United States passport as well as his and his familys financial circumstances. (Appendix D). The State set forth Shellie

Zimmermans testimony at the bond hearing wherein she testified under oath that she and her husband had no financial means or assets they could liquidate to assist in paying for a bond. (Appendix D, Pages 3-4). She also had testified on cross-

examination that she was aware of the website but did not know the amount of money that had been collected. (Appendix D, Page 4). Furthermore, the State cited 4 to transcript excerpts of

recorded jail conversations prior to the bond hearing between Petitioner and his wife. While incarcerated at the Seminole County Jail, Petitioner had discussed with his wife the amount of money in the website account and that it was transferred into Petitioners credit union account and then, at Petitioners direction, into Shellie Zimmermans personal account. (Appendix D, Pages 4-6). According to the credit union statements, on April 19, 2012, Shellie Zimmermans account reflected over $135,000.00 (Appendix D, Page 7). The State asserted that Petitioner intentionally deceived the court with the assistance of his wife. Id. The State also contended Petitioner and his wife spoke in code in order to disguise what they were doing. Id. The State further alleged that all of this occurred prior to the sworn bond hearing testimony on behalf of Petitioner that he was indigent and his wife had no money. Id. The State pointed out that Petitioner also represented to the court, through his attorney (who the State was not alleging was privy to what Petitioner was doing), that he was turning in his United States passport when, in fact, Petitioner possessed a second valid passport. Id. The State asked that the judge revoke the bond set at $150,000.00 based upon false representations by Petitioner and his family, or increase the bond substantially. Id. A hearing was held on June 1, 2012, at which the States motion to revoke bond was addressed. (Pet. Appx. Pages 236-349). The judge noted its surprise that the State had not filed anything against Petitioners wife as there was no doubt she was aware of 5

what

had

transpired.

(Pet.

Appx.

Pages

350-351).

Referencing

Florida Rule of Criminal Procedure 3.131, the judge noted that in subsection 5 all information provided by a defendant in an attempt to obtain bond shall be accurate, truthful and complete without omissions to the best knowledge of the defendant. (Pet. Appx. Page 350). The judge asked if the jail conversations predated the bond hearing and the State indicated they had, as they were conducted on April 12th, April 15th, April 16th and April 17th. (Pet. Appx. Page 351). The judge stated that Petitioner was not entitled to sit quietly allowing his wife to testify falsely or his attorney to unknowingly make misrepresentations. (Pet. Appx. Page 351). The judge revoked the bond in that good cause existed based upon the material misrepresentations relied upon by the court. (Pet. Appx. Page 352). The trial court also informed Petitioners counsel that he could reset the case for a bond hearing to allow Petitioner to explain to the court what happened. Id. On June 11, 2012, an order revoking bond was rendered based on Petitioners lack of candor. (Pet. Appx. Page 115). In the order, the trial court held as follows: The Defendant, charged with second-degree murder, was released on $150,000 bond on April 20, 2012. At the hearing, the Court heard testimony regarding the Defendants financial means from Shelly Zimmerman, the Defendants wife. She testified under oath that she and the Defendant had no financial means and should be declared indigent for costs. She acknowledged the existence of a legal fund, administered by her brother-in-law, which had collected online donations, but she further testified that she had no knowledge of how much money was presently available in that 6

fund. It was also affirmatively represented that the Defendant had turned in his passport. The Defendant gave limited testimony at the bond hearing on different matters, but did not contradict or supplement his wifes testimony about his financial resources or possession of a passport. The State filed a Motion to Revoke Bond which was heard on June 1, 2012. At the hearing on the motion, the State alleged that, contrary to the testimony provided at the bond hearing, she and the Defendant had discussed the amount of money in the fund and how to gain access to it. The State cited excerpts from recorded conversations made at the jail between the Defendant and his wife to support its assertions of deception. With regard to the Defendants present financial means, the State notes that they spoke in code to make it sound like they were talking about negligible sums of money. To the contrary, the evidence shows that, in the five days prior to the bond hearing, approximately $135,000 was transferred to the legal fund into the Zimmermans bank account. This was not disclosed at the bond hearing. Also, it was alleged that the Defendant was untruthful regarding his possession of a valid passport. At the bond hearing, the Defendant surrendered passport number 301813125, which had been issued on May 22, 2002, and had an expiration date of May 21, 2012. The defense asserted that this was the Defendants only passport. However, it was later discovered that the Defendant was actually in possession of another passport, number 017355779, which had been issued on March 26, 2004 and expired on March 24, 2014. It was issued as a replacement when the Defendant notified the Department of State that he had lost passport number 301813125. Neither the Defendant nor his wife mentioned the existence of this second passport during their testimony. The State argued against setting a bond for the Defendant on the basis that the circumstances of this case demonstrate that he is a serious threat to the community, based upon his prior violent history, the repeated 7

refusal to respect law enforcements directives, and the fact that he is charged with killing an unarmed teenager. The Court, based upon the information presented, determined that $150,000 was an appropriate bond to ensure the Defendants presence in court and also to protect the community. The Defendant was also allowed to leave the state and keep his location confidential in order to ensure his personal safety. Had the Court been made aware of the true financial circumstances at the bond hearing, the bond decision might have been different. A bond that a Defendant cannot afford is tantamount to no bond at all. While the Court would have been authorized under State v. Arthur, 390 So. 2d 717 (Fla. 1980), to keep the Defendant in custody without granting a bond, the Court exercised its discretion and set what was believed to be a reasonable bond. In determining the reasonable bond amount, the Court balanced the Defendants right to be free from custody, while still ensuring his appearance in court, with the communitys safety if he were to be released. His financial status was a key factor in this balancing test. (Pet. Appx. Pages 115-116)(citation omitted). The trial court weighed several factors both for and against revocation, giving much weight to Petitioners lack of respect for the law or the integrity of the judicial process, noting that the valid passport and bank account were relevant to Petitioners access to means of flight. (Pet. Appx. Page 117). The judge explained that this factor was dispelled based upon evidence from the Department of State. Id. The trial judge revoked Petitioners bond. Id. Petitioner made no objection to this order revoking bond and certainly did not

thereupon seek recusal of the court. Instead, he filed a second motion seeking bond, to be decided by the very same judge.

A hearing was held on June 29, 2012, upon, inter alia, Petitioners motion to reset bond. (Pet. Appx. Pages 118,132). Petitioner presented the testimony of an accountant regarding the monies owed by Petitioner and his wife as well as the incoming funds from the website account which had a net total worth of $197,567.91. (Pet. Appx. Pages 135-144). There were seven or eight transfers of money from the PayPal account into Petitioners account in increments less than $10,000.00; for example, in amounts of $9,999.00 and $9,000.00. (Pet. Appx. Pages 139,149,151). Those same funds were then transferred into Shellie Zimmermans accounts and then, a couple days later, transferred back into Petitioners account which then found their way into counsels trust account. (Pet. Appx. Pages 141,142-143). On cross-examination of the accountant, the State inquired whether the accountant would ever refer to $9,000.00 as nine dollars. (Pet. Appx. Page 145). The accountant indicated he would not and agreed with the State that in doing so, the only conclusion would be that the persons were speaking in code. Id. On April 17, 2012, Petitioner had approximately $80,000.00 in his account, while his wife had $50,000.00, for a total of $132,000.00. (Pet. Appx. Page 153). On April 17th, money was transferred from Petitioners account to his wifes account so that less than $20,000.00 was left in Petitioners account and his wifes account reflected

$110,000.00. (Pet. Appx. Page 154). Further transfers were made on April 18th so that Petitioners account showed a balance of about $10,000.00, and the wifes account reflected a balance around 9

$120,000.00. (Pet. Appx. Pages 154-155). More money was transferred out of Petitioners account before the bond hearing and the money was returned to Petitioners account after the bond hearing. (Pet. Appx. Pages 155-156). The accountant agreed this was done to make it appear that he didnt have the money. (Pet. Appx. Page 157). The money in the PayPal account was transferred through

Petitioners e-mail account with a password, so whoever had access to Petitioners e-mail and password was the person transferring the funds. (Pet. Appx. Page 161). The defense presented other evidence and then indicated it was counsels intent to allow Petitioner to speak to the court without being subject to cross-examination. (Pet. Appx. Pages 229,230). The State objected to being foreclosed from cross-examination. Id. The judge suggested this was a back-door attempt to avoid some harsher penalties pursuant to section 903.035, but counsel denied trying to back-door it. (Pet. Appx. Pages 230,232). Counsel suggested the trial court could inquire after Petitioner made his statement, but the judge stated that the State should have the opportunity to question Petitioner since this issue is not personal to the judge, but has to do with what he did to the system and the process. (Pet. Appx. Pages 230-231). Thus, the judge concluded, Petitioner could testify but he would be subject to cross-examination. (Pet. Appx. Page 231). However, Petitioner was also free to invoke his Fifth Amendment right. (Pet. Appx. Page 232). The State made it clear it wanted the opportunity to cross-examine Petitioner. Id. After consultation, the defense 10 did not call any more

witnesses. Id. Upon argument of counsel, the judge indicated it would await the additional evidence and make a ruling. (Pet. Appx. Pages 232-252). Less than a week later, on July 5, 2012, the trial court entered a lengthy order setting bail. (Pet. Appx. Pages 254-261). The questions before the court were whether a defendant is entitled to bail when he presents false testimony at a prior bond hearing and what recourse there is when a defendant has shown a blatant disregard for the judicial system. (Pet. Appx. Page 255). The trial court, echoing statements which had been made to various media outlets by Petitioners counsel regarding Petitioner having been less than fully candid with the court, (Appendix E, Page 8), held: Under any definition, the Defendant has flouted the system. Counsel has attempted to portray the Defendant as being a confused young man who was fearful and experienced a moment of weakness and who may also have acted out of a sense of betrayal by the system. Based upon all of the evidence presented, this Court finds the opposite. The Defendant has tried to manipulate the system when he has been presented the opportunity to do so. He is an adult by every definition; Trayvon Martin is the only male whose youth is relevant to this case. The Defendant has taken courses in criminal justice with the intention of becoming a police officer, an attorney, a judge, or a magistrate like his father. He has been arrested before, having entered and successfully completed a pre-trial intervention program. He has also obtained an injunction and had an injunction entered against him. The injunction against him has obviously been dissolved at some point for him to have validly obtained a permit to carry the firearm used to shoot Trayvon Martin. He also had the wherewithal to set up a website to collect donations to help defray the costs of his defense. Thus, before this tragic 11

incident, the Defendant had a very sophisticated knowledge of the criminal justice system over and above that of the average, law-abiding citizen. Moreover, any sense of betrayal would be unreasonable. He was cooperative with the Sanford Police Department in that he did give numerous statements upon request. The State notes that his stories changed each retelling, but on the surface he should be deemed to have been cooperative. However, he clearly understood that he was being investigated for committing a homicide and, while he believes that he was justified in his actions, there has been nothing presented which indicates that he was misled into believing that he would not be charged with a crime. Contrary to being betrayed, the Defendant received normal, reasonable treatment and was granted reasonable bail. Contrary to the image presented by the Defendant not by the evidence but only by argument of counsel, it appears to this Court that the Defendant is manipulating the system to his own benefit. The evidence is clear that the Defendant and his wife acted in concert, but primarily at the Defendants direction, to conceal their cash holdings. They spoke in rudimentary code to conceal the true amount of money they were dealing with. Adam Magill, the Defendants forensic accounting expert, did not dispel this Courts concern that the Defendant was seeking to hide assets. He admitted that one interpretation of the Defendants actions was to hide money, but also stated that it was not a very effective way to do so because all of the bank transactions were traceable. The Defendant also neglected to disclose that he had a valid second passport in his safe deposit box. Notably, together with the passport, the money only had to be hidden for a short time for him to leave the country if the Defendant made a quick decision to flee. It is entirely reasonable for this Court to find that, but for the requirement that he be placed on electronic monitoring, the Defendant and his wife would have fled the United States with at least $130,000 of other peoples money. The 12

fact that they have spent the money responsibly (i.e., without going out to expensive dinners or splurging on nonessentials) is of no consequence in this analysis. The Defendant didnt present any witness to affirmatively state that the Defendant has not received funds from any other source. (Pet. Appx. Pages 255-256). The trial court, while admitting the analogy was not exact, compared Petitioners deception at the bond hearing to violating a bond condition. (Pet. Appx. Pages 256-258). The court found its discretion limited by State v. Paul, 783 So. 2d 1042 (Fla. 2001). (Pet. Appx. Pages 257-258). The court addressed each of the factors set forth in section 903.046(2), Florida Statutes, and concluded that a bond of $1,000,000.00 was fair based upon the changed circumstances. (Pet. Appx. Pages 258-261). In his Motion to Disqualify Trial Judge dated July 13, 2012, Petitioner alleges he has a reasonable fear he cannot get a fair trial or stand your ground hearing in that the trial courts order setting bail included gratuitous, disparaging remarks about Mr. Zimmermans character; advocates for Mr. Zimmerman to be prosecuted for additional crimes; offers a personal opinion about the evidence for said prosecution and continues to hold over Mr. Zimmermans head the threat of future contempt proceedings. (Pet. Appx. Page 266-274). The State filed a response to the motion arguing that the allegations were legally insufficient and that some of the facts asserted in the motion were inaccurate, misleading or incomplete. (Appendix E). The trial court issued an order on August 1, 2012, denying the

13

motion as legally insufficient. (Pet. Appx. Pages 280-281). In a footnote, the trial court noted that this was not the first motion to disqualify a judge filed by Petitioner. (Pet. Appx. Page 280). Petitioner had filed a motion to disqualify the first judge

assigned to the case on the basis that the judge was related to an interested party. Id. However, the first judge found the grounds legally insufficient in that she did not have an interest that could be substantially affected, nor was there any allegation that she would be exposed to extra-judicial information because of her husbands employment. Id. As such, arguably, the first judge disqualified herself pursuant to subsection Florida Rule of

Judicial Administration 2.330(d)(1), rather than (d)(2). Id. Yet, in an abundance of caution, the successor trial judge applied the standard for an initial motion to disqualify, rather than a

successive motion. Id. On August 13, 2012, Petitioner filed a petition for writ of prohibition seeking review of the order denying the motion to disqualify. On August 14, 2012, this Court issued its order to respond to the Petition for Writ of Prohibition. MERITS The writ of prohibition is an extraordinary remedy by which a court may prevent a lower court from acting outside of its

jurisdiction. Mandico v. Taos Construction, Inc., 605 So. 2d 850, 853 (Fla. 1992). Prohibition is the appropriate avenue for relief after the denial of a motion to disqualify a trial judge because of bias or other reasons. Castro v. Luce, 650 So. 2d 1067 (Fla. 2d DCA 14

1995). Rule 2.330(d)(1) provides "[a] motion to disqualify shall show . . . that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge . . . ." A judge considering a motion to

disqualify is limited to determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged. Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); Fla. R. Jud. Admin. 2.330(f). The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Gore v. State, 964 So. 2d 1257 (Fla. 2007); see also 38.10, Florida Statutes (2011); Fla. R. Jud. Admin. 2.330(d)(1). A motion to disqualify will be dismissed as legally insufficient if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing. Griffin v. State, 866 So. 2d 1, 11 (Fla. 2003). Moreover, "mere subjective fear[] of bias will not be legally sufficient, rather, the fear must be objectively reasonable." Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). The standard of review of a trial judge's determination on a motion to disqualify is de novo. Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla. 2004), cert. denied, 544 U.S. 930 (2005). Whether the motion is legally sufficient is a question of law. Barnhill v. State, 834 So. 2d 836, 843 (Fla. 2002). 15

However, where a previous motion to disqualify has been granted pursuant to subdivision (d)(1), a successor judge shall not be disqualified unless the successor judge rules that he or she is not fair or impartial and may rule on the truth of the allegations in the motion. See Fla. R. Jud. Admin. 2.330(g). An order denying a motion to disqualify a successor judge is reviewed under an abuse of discretion standard. King v. State, 840 So. 2d 1047 (Fla. 2003). Legal sufficiency: To warrant recusal, a motion for disqualification must

concretely allege a well-founded, reasonable fear on the part of the defendant that he or she will not receive a fair trial before a particular judge. See Asay v. State, 769 So. 2d 974, 980 (Fla. 2000); Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998); Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992). A judge is not required to abstain from forming mental impressions and opinions during the course of the presentation of evidence. Mobil v. Trask, 463 So. 2d 389, 390 (Fla. 1st DCA 1985). Here, assuming the allegations are true as required by the rule, the complaints raised by Petitioner are legally insufficient. The term legal sufficiency encompasses more than mere technical compliance with the rule and the statute. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Fla. R. Jud. Admin. 2.330(d)(1). Further, this fear of judicial bias must be objectively reasonable. See State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4th DCA 1994). The subjective fear of a party seeking the 16

disqualification of a judge is not sufficient. See Kowalski v. Boyles, 557 So. 2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show the judge's undue bias, prejudice, or sympathy. Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992); see also Rivera v. State, 717 So. 2d 477, 48081 (Fla. 1998). Where the claim of judicial bias is based on very general and speculative assertions about the trial judge's attitudes, no relief is warranted. McCrae v. State, 510 So. 2d 874, 880 (Fla. 1987). Parker, 3 So.3d at 982. Krawczuk v. State, 37 Fla. L. Weekly S270 (Fla. Apr. 12, 2012). In Waterhouse v. State, 792 So. 2d 1176, 1192 (Fla. 2001), the trial judge issued a much more egregious statement to the Florida Parole and Probation Commission to the effect that the subject is a dangerous and sick man and that many other women have probably suffered because of him. We rejected the claim that such a statement by a trial court judge provided a basis for the recusal of the trial judge in subsequent proceedings: [T]he comment to the Commission did not constitute a prejudgment of any pending or future motions that the defendant might file, and was not made outside the official postsentence investigative process in a manner indicating a predisposed bias against the defendant. Given the facts in this case, the statement to the Commission indicates nothing more than the judge's opinion after having heard evidence relating to two exceedingly cruel and brutal murders of women who were sexually assaulted. The circumstances of these murders, coupled with Waterhouse's own admission that he had a problem with sex and violence, would lead any reasonable person to conclude that Waterhouse is a dangerous and sick man. Id. at 1195; see also Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 17

1998) (finding that the written response by the trial judge to a parole commission inquiry that I am inalterably opposed to any consideration for Executive Clemency and I believe the sentence of the court should be carried out as soon as possible was insufficient to disqualify the judge from further presiding over the case). Doorbal v. State, 983 So. 2d 464, 476-77 (Fla. 2008). Petitioner complains about rulings in the past in his

background section, but it is well established that [t]he fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or allegations that the trial judge had formed a fixed opinion of the defendant's discussed legally guilt, even where it is alleged are that the judge

his

opinion

with

others, to

generally the

considered judge's

insufficient

reasons

warrant

disqualification. Rivera, 717 So. 2d at 481 (quoting Jackson v. State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d 494, 496 (Fla. 2d DCA 2003)(It is well established that a trial courts prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify). Moreover, any objection to some of these rulings is untimely2. As such, the background complaints regarding past rulings by the trial court, especially those that were also contrary to the States position, are legally

Pursuant to Rule of Judicial Administration 2.160(e), a motion for recusal must be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion. Clearly some of these claims, filed more than ten days after the complained-of rulings, are untimely. 18

insufficient and untimely. However, Petitioners primary complaints are with the trial courts findings in the order granting bond that he manipulated the system and demonstrated a disregard for the system. Of course, this finding was made after it was established that Petitioner and his wife knew they had received donations of more than $200,000.00 from a website prior to the first bond hearing, and that they had moved the money from Petitioners account to his wifes account before the hearing and then back to Petitioners account after the bond hearing. Furthermore, it was unrefuted that Shellie Zimmerman knew to the contrary when she testified under oath at the first bond hearing that neither she nor her husband had any income and no major assets that could be liquidated to assist in raising money for a bond. (Pet. Appx. Pages 370-371). Mrs. Zimmerman also

indicated she was aware the defense was seeking to have her husband declared indigent because they had no financial means to assist in paying for costs. (Pet. Appx. Page 371). It is unrefuted that this testimony was, at best, less than honest if not intentionally misleading especially in light of the audiotapes which reveal Shellie Zimmerman and Petitioner

discussing, prior to the first bond hearing, the website money at the jail in code by referring to the amounts, for example, as nine dollars rather than $9,000.00. Defense counsel conceded during his argument in the second bond hearing that they didnt tell you the truth about the money. (Pet. Appx. Page 251). Thus, Petitioner has shown himself willing to play the system, if possible. In its order 19

setting bond, the trial court simply chastised Petitioner in an attempt to get his attention so that it would not happen in the future, just like a judge chastising a defendant who has violated a bond condition or violated his probation. Petitioner also asserts that the court continues to hold over Petitioner the possibility of contempt proceedings. (Pet.

Appex. Pages 12-13). However, examination of the courts order indicates that Petitioner has taken this reference out of context; the courts reference to its declination to exercise contempt powers comes directly after a discussion of the Third District Court of Appeals opinion in State v. Washington, 37 Fla. L. Weekly D1535 (Fla. 3d DCA June 27, 2012), wherein the list of potential remedies of bond conditions, which include the arrest and

commitment of a defendant. . . harsher conditions of pretrial release. . . increase the amount of bond. . . pretrial detention. . . [or] direct or indirect criminal contempt. Id. (Pet. Appendix Page 350). Immediately after quoting this language from Washington, the trial court discussed each alternative including, but not limited to, the possibility of contempt proceedings. Id. The socalled threat, if there was one, was contained in the language taken verbatim from Washington. Notably, the trial court did not label Petitioner a liar; instead, the court found he had manipulated the system. While granting the motion to set a bond, the judge also chastised Petitioner for having allowed misrepresentations about his passport and financial situation to be presented to the court, facts which 20

are unrefuted and which clearly affected the trial courts ruling on bond. This does not require disqualification of the trial judge. See, e.g., Bert v. Bermudez, 37 Fla. L. Weekly D1465 (Fla. 3d DCA June 29, 2012)(trial judges admonitions of counsel and threat to hold counsel in contempt did not require disqualification as judge expressed no views as to credibility, made no comment suggesting he had pre-judged any issue, harbored any bias, or said anything to support finding that the petitioners fear is reasonable). According to Petitioner, the comments of which he complains were gratuitous. Even assuming this to be the case, [g]enerally, mere characterizations and gratuitous comments, while offensive to the litigants, do not in themselves satisfy the threshold requirement of a well-founded fear of bias or prejudice. See Oates v. State, 619 So. 2d 23, 26 (Fla. 4th DCA), review denied, 629 So. 2d 134 (Fla. 1993); Nassetta v. Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA 1990). "A judge may form mental impressions and opinions during the course of presentation of evidence, as long as she does not prejudge the case." Brown v. Pate, 577 So. 2d 645, 647 (Fla. 1st DCA 1991)." Wargo v. Wargo, 669 So. 2d 1123, 1124-1125 (Fla. 4th DCA 1996). Remarks regarding a court's feelings after having heard

evidence, even if gratuitous, are not grounds for recusal unless there is an objectively reasonable basis for concluding that the judge is personally biased or will in the future fail to be impartial. The facts and reasons given for disqualification of a trial court judge must be such that the actions of the trial court judge show personal bias or prejudice. See Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 21

1995). The remarks of the trial court judge in the present case fail to demonstrate personal bias or prejudice and cannot be interpreted as creating in the petitioners an objectively reasonable well-grounded fear that the petitioners will not receive a fair and impartial trial. The facts here are more analogous to the case of Nassetta v. Kaplan, 557 So. 2d 919 (Fla. 4th DCA 1990), where, in response to a motion to reduce bail, the trial judge's comment, that he did not care whether the lawyer, charged with fraud and grand theft, got out of jail, did not require recusal. In ruling on a motion for disqualification, the Fourth District held that the trial judge's "gratuitous remarks" did not require recusal. See Nassetta, 557 So. 2d at 920; see also Benson v. Tharpe, 685 So. 2d 1363, 1364 (Fla. 2d DCA 1996) (holding that judge's comment that his "hands were tied" did not establish that he was predisposed to impose adult sanctions for juveniles, but meant that his rulings were contingent upon a decision by the appellate court). Likewise, the remarks of the trial judge here, "I'm not going to be threatened" and "I don't care what the Third District does with this case," do not require disqualification. The first is a gratuitous comment showing the judge's attempt to remain neutral, and the second indicates that he will abide by a decision from this Court directing him on whether to set the case for trial. Neither comment is grounds for the granting of a petition for writ of prohibition." Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA 2008)(footnote omitted). Likewise, we recently pointed out that a "mere 'subjective fear' of bias will not be legally sufficient, rather, the fear must be objectively reasonable." Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). We do not find Mansfield's allegations of fear to be objectively reasonable. See also Asay v. State, 769 So. 2d 974 (Fla. 2000). Our cases support the trial court's denial of the motion 22

to disqualify, and we affirm the trial judge's order. Mansfield v. State, 911 So. 2d 1160, 1171 (Fla. 2005). Moreover, distinguishable the in authority that the relied judges in upon those Petitioner cases is

stated

categorically that they did not find the party credible and would not believe the party either now or in the future. Brown v. St. George Island, Ltd., 561 So. 2d 253, 257 (Fla. 1990)(Judge Rudd, without having heard testimony from Stocks, tossed the affidavit back and said, If [the party] were here I wouldn't believe him anyway.); Campbell Soup Co. v. Roberts, 676 So. 2d 435 (Fla. 2d DCA 1995)(After examining the affidavit, [the court] expressed doubt as to its reliability, commenting that [I]f the president of Campbell Soup were to file a similar affidavit, I don't know how much credence I would give it if it had the same things in it.); Owens-Corning Fiberglas Corporation v. Parsons, 644 So. 2d 340, 341 (Fla. 1st DCA 1994)(trial judge made a comment about a party's believability with the court is about as thin as a balloon); and Deauville Realty Co. v. Tobin, 120 So. 2d 198, 202 (Fla. 3d DCA 1960), cert. denied, 127 So. 2d 678 (Fla. 1961)(judge stated posttrial that he would not believe an agent of one of the parties who the judge believed had lied on the stand). Here, there has been no such statement by the trial judge and the unrefuted truth is that Petitioner did allow others to mislead the court into granting him a very beneficial bond which authorized him to leave the State despite being charged with second degree murder and facing a

23

potential life sentence. Similarly, the judge mentioned the courts contempt power and section 903.035(3), Florida Statutes, in an attempt to get

Petitioners attention that his actions in allowing others to mislead the court about his passport and financial situation constituted a manipulation of the system and to ensure it would not happen again. Notably, the judge ruled in Petitioners favor and granted him a bond revealing that the court is fully capable of following the law even after finding Petitioner manipulated the system. Cf. Brown, 561 So. 2d at 257 n. 7 (We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification...simply because of making an earlier ruling in the course of a proceeding which had the effect of rejecting the testimony of the moving party. At the very least...there must be a clear implication that the judge will not believe the complaining partys testimony in the future.). The comments now complained of certainly do not indicate any predisposition as to future motions, and indicate nothing more than the judges opinion after having heard evidence. None of the comments by the trial court rise to the level of being legally sufficient to establish an objectively reasonable fear by Petitioner that he will not receive a fair trial by the judge. Instead, the judge was simply giving Petitioner a well deserved tongue lashing for allowing others to mislead the court about his passport and his financial situation. Moreover, the trial court did not rule against Petitioner. The judge again set a bond 24

for Petitioner, and Petitioner is currently out on bond. Thus, the grounds listed by Petitioner in his motion are facially

insufficient. Reducing the claim to its true essence, the trial judge set a bond on a defendant charged with murder, the judge learned that circumstances were not as previously represented, the judge revoked bond, and, upon motion of Petitioner, set a new higher bond. In a nutshell, when new facts were revealed, the trial judge increased the bond, the defense is unhappy with that ruling, and filed a motion to disqualify the judge who set the higher bond. WHEREFORE, based upon the above, Respondent submits that the motion to disqualify in this case is legally insufficient and, thus, the trial court properly denied the motion. The petition for writ of prohibition should be denied. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Response to Petition for Writ of Prohibition and Index to Appendix has been furnished via delivery by U.S. Mail to counsel for Petitioner, Mark OMara, Esquire, at OMara Law Group, 1416 East Concord Street, Orlando, Florida 32803, and Donald R. West,

Esquire, at Donald West Law Group, P.A., 636 West Yale Street, Orlando, Florida 32804; the Honorable Kenneth R. Lester, Jr., Circuit Judge, Seminole Criminal 32773; Justice and Center, de 101 la Bush

Boulevard,

Sanford,

Florida

Bernie

Rionda,

Assistant State Attorney, Office of the State Attorney, 220 East Bay Street, Jacksonville, Florida 32203, this 23rd day of August, 25

2012. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this response is 12-point Courier New, in compliance with Fla. R. App. P. 9.100(l). Respectfully submitted,

PAMELA JO BONDI ATTORNEY GENERAL

_________________________ PAMELA J. KOLLER ASSISTANT ATTORNEY GENERAL Fla. Bar. No. 0775990 444 Seabreeze Blvd. 5th Floor Daytona Beach, FL 32118 (386) 238-4990 Fax (386) 238-4997 Pamela.Koller@myfloridalegal.com COUNSEL FOR RESPONDENT

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