120 S. Olive Ave., Suite 402
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State of Florida vs. Francisco Henry Case

A “writ of prohibition”, in the United States, is an official legal document drafted and issued by a supreme court, superior court or an appeals court to a judge presiding over a suit in an inferior court. The writ of prohibition mandates the inferior court to cease any action over the case because it may not fall within that inferior court’s jurisdiction. The document is also issued at times when it is deemed that an inferior court is acting outside the normal rules and procedures in the examination of a case. In another instance, the document is issued at times when an inferior court is deemed headed towards defeating a legal right.

In criminal proceedings, a defendant who has been committed for trial may petition to the superior court for a writ of prohibition, in this case on the ground that his conduct, even if proven, does not constitute the offense charged.

The emergency writ of prohibition has been filed on the Henry case, which asks the Appellate Court to dismiss the case on the grounds of double jeopardy. The complete emergency writ of prohibition can be found here in its entirety.

Case Number: LT NO.: 502010CF002071AXXXMB

Petitioner, Francisco Henry, by and through his undersigned counsel petitions this Honorable Court pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(3) for a writ of prohibition preventing the Honorable Karen Miller, Circuit Court Judge for the 15th Judicial Circuit from retrying Petitioner after a mistrial pursuant to the Double Jeopardy Clause of the 5th Amendment of the United States Constitution and in support thereof submits as follows:


The Court has jurisdiction to issue a writ of prohibition pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure Rule 9.030(b)(3). Strawn v. State, 332 So.2d 601 (Fla.1976); Walker v. Cocalis, 434 So.2d 352 (Fla. 4th DCA 1983).” Janos v. State, 763 So.2d 1094, 1099 (Fla. 4th DCA 1999).

Relief Sought

Petitioner requests the issuance of a writ of prohibition that: (1) quashes the order setting this cause for retrial; (2) prohibits the trial court from retrying Petitioner and (3) forever discharges Petitioner for the crimes charged.

Preliminary Statement

In this petition, Francisco Henry will be referred to as “Petitioner”. The Re-Trial of this Petitioner is set for July 16, 2012 hence the Writ is filed as an emergency and without the support of the transcript; but all efforts to obtain the original transcript has been satisfied by the Petitioner. The transcript of the relevant portion of the proceedings has been ordered and will be filed with this Honorable Court promptly upon receipt of same.

IV. Procedural History

Petitioner is charged via information with 17 counts of sexual battery with a firearm, 3 counts of robbery with a firearm, and 4 counts of false imprisonment. Petitioner has been in custody since February 23, 2010. Petitioner filed a demand for speedy trial pursuant Florida Rule of Criminal Procedure 3.191(b). Petitioner filed the demand after the case was continued several times despite his announcement that he was ready for trial.

Jury selection commenced July 2, 2012 and on July 6, 2012 a sworn jury was empaneled. Trial commenced July 9, 2012 and continued until Judge Miller declared a mistrial on July 12, 2012. Immediately thereafter, Petitioner moved to be discharged pursuant to the Double Jeopardy Clause of the 5th Amendment of the United States Constitution. Judge Miller denied the ore tenus motion and reset the case to commence re-trial July 16, 2102. This petition follows.

V. Issue

Is a trial court prohibited from retrying Petitioner for the same offenses pursuant to the Double Jeopardy clause of the 5th Amendment of the United States Constitution when the trial judge declared a mistrial as a result of the prosecutor’s intentional and deliberate improper questioning of the lead detective in order to get him to comment on Petitioner’s silence for the sole purpose of goading Petitioner into requesting a mistrial in order to prevent Petitioner from being acquitted by the jury ?

VI. Statement of the Case

Petitioner is charged by information with 17 counts of sexual battery with a firearm, 3 counts of robbery with a firearm, and 4 counts of false imprisonment. After Petitioner had been announcing ready for trial for more than a year, while in custody, he was eventually forced to file a demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(b). In order to accommodate Petitioner’s demand for a trial, he and his codefendant, Massillon Lherisson, were called to trial over the objection and written motion to sever by the Petitioner. Both the Petitioner and his co-defendant appeared before the court on July 2, 2012 for the start of jury selection. A sworn jury was empanelled July 6, 2012.

The State began submitting its case in chief to the jury on July 9, 2012. The State continued until the mistrial was declared on July 12, 2012. Throughout the time of this trial, the Petitioner revealed his theory of defense through cross examination of each witness called by the State. Specifically, Petitioner began to establish that he was not the individual that committed the offenses charged and that the police arrested the wrong person. The State, in what would have been presumably the last day of their presentation of the case in chief, called Detective John Young of the Delray Beach Police Department to testify. During his direct examination he revealed that he is a veteran detective with the Crimes Against Persons unit of the Delray Beach Police Department with more than 21 years of experience. Detective Young testified that he was assigned as the lead detective in this case.

During the lead detective’s direct examination, the prosecutor asked him a question that was meant to elicit a response that commented on the Petitioner’s right to silence. Specifically, the Prosecutor’s question concerned the lead detective actions while inside of the Delray Beach Police Station, where Petitioner was in custody. Petitioner was being questioned about his home location, which is around the corner and in close proximity to the alleged crime scene. The questions were meant to elicit Petitioner’s comments concerning his location in conjunction to where the crime alleged occurred given way to opportunity.

Petitioner contemporaneously objected to the question and asked to approach the bench. After objecting, but before the parties approached Judge Miller, the lead detective answered the question in front of the jury. Petitioner argued at side bar that the State’s question and the lead detective’s response were improper as a comment on the petitioner’s right to silence. Petitioner advised Judge Miller that while in custody at the Delray Police Station, he did not give a statement to the lead detective and that he exercised his right to remain silent and invoked his right to counsel. Petitioner requested a mistrial. The State argued it was an accident and then remained silent. Judge Miller denied the request for mistrial but sustained the objection and specifically Ordered the prosecutor to cease asking those questions because it was improper.

Within minutes of Judge Miller ordering the prosecutor not to engage in that line of questioning, the prosecutor again questioned the lead detective about what Petitioner told him at the police station. Again this was for the sole purpose to demonstrate to the jury that Petitioner was in close proximity to the crime scene.

Petitioner again contemporaneously objected to the question. Despite the objection and after having been previously advised by the Trial Court that such a response was improper, the lead Detective testified that he attempted to speak with Petitioner. This response suggested that Petitioner had a reason to hide or conceal information from the police. Petitioner argued that the State having previously been admonished and warned about the lead detective’s testimony being entirely improper, which occurred just moments before, again solicited the same testimony and again violated Petitioner’s right to a fair trial.

Petitioner reiterated that he never waived his Miranda Rights and never gave a statement to any law enforcement officers, including the lead detective. Petitioner again moved for a mistrial because of the lead detective’s improper testimony and the cumulative nature of the errors committed during the trial. Petitioner argued this last error was so prejudicial that the he would not be able to overcome the err as the jury heard the lead detective’s answers on now two occasions and within a three minute and three question span. Co-defendant joined in the motion for mistrial due to the inescapable taint that the cumulative errors had on the trial.

Judge Miller dismissed the jury and went into recess. When Judge Miller returned she declared a mistrial for Petitioner but not for codefendant. The trial court then recessed again. When court reconvened Judge Miller heard additional argument from codefendant regarding his request for a mistrial. Judge Miller then asked Petitioner if he was going to waive his speedy trial demand. Petitioner did not waive his speedy trial and argued for a discharge on double jeopardy grounds. Specifically, Petitioner made an oral motion to dismiss, arguing that double jeopardy had attached, and that the State purposefully and deliberately elicited the protected testimony from the lead detective and the prosecutor deliberately caused the error. The prosecutor while acknowledging error denied that it was intentional. The prosecutor never opposed the mistrial or requested a curative instruction and if fact when asked by Judge Miller what the State’s response was to the Petitioner’s request for a mis-trial and the Trial Court’s position that a curative instruction be given to the jury, the State acquiesced to the decision of the Trial Court.

Judge Miller without holding any hearing on the issue and stating on the record her analysis summarily concluded that the prosecutor did not act deliberately and denied the motion to dismiss and request for discharge. Judge Miller then granted a mistrial for codefendant and reset the matter for trial to commence July 16, 2012.

VII. Argument

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232, 241; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664. “Underlying this constitutional safeguard is the belief that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223. Where a mistrial has been declared, the defendant’s “valued right to have his trial completed by a particular tribunal” is also implicated. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079(1976).

When a mistrial is declared upon a defendant’s motion, jeopardy does not attach and the defendant may be retried even where the error was due to the action of the State. Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083(1982); United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426 (1980); United States v. Fern, 155 F.3d 1318 (11th Cir. 1998); State v. Gaines, 770 So. 2d 1221 (Fla. 2000); State v. Santiago, 928 So. 2d 480 (Fla. 5th DCA 2006); State v. Scurry, 933 So. 2d 565 (Fla. 1st DCA 2006); State v. Balezos, 765 So. 2d 819 (Fla. 4th DCA 2000). Although double jeopardy is generally no bar to a subsequent prosecution when a mistrial is granted on a defendant’s motion, there is a narrow exception to this rule where it can be shown that the prosecution engaged in serious, egregious, intentional, or deliberate conduct intended to provoke the defendant into moving for a mistrial. U.S. v. Blankenship, 382 F.3d 1110 (11th Cir. 2004); Gore v. State, 784 So. 2d 418 (Fla. 2001); U.S. v. Vallejo, 297 F.3d 1154 (11th Cir. 2002); Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982); State v. Gaines, 770 So. 2d 1221 (Fla. 2000); Robinson v. State, 574 So.2d 108 (Fla. 1991); State v. Scurry, 933 So. 2d 565 (Fla. 1st DCA 2006); State v. Butler, 528 So.2d 1344, 1345 (Fla. 2nd DCA 1988); Duncan v. State, 525 So.2d 938, 940-41 (Fla. 3rd DCA 1988); Cooper v. State, 716 So.2d 823 (Fla. 5th DCA 1998).

In this case, the prosecutor’s elicitation of testimony from the lead detective that improperly commented on Petitioner’s silence was without a doubt intentional, deliberate and meant to provoke him into moving for a mistrial. The reality is that Petitioner was on the verge of winning this case, and the State accepting this reality purposefully caused error, so as to hit a reset button on the trial, in order to prevent an acquittal.

In support of this contention, one only need review what occurred at trial. From the Petitioner’s standpoint this was a case of who done it? It has been Petitioner’s contention that he was not the individual who committed any of the crimes charged, and in fact he was not even there. The evidence demonstrated that Petitioner was not linked to this alleged crime by any physical or scientific evidence such as DNA, fingerprints, fibers, footprints, articles of clothing, or any other evidence that would support the State’s case that the Petitioner was even present at the crime scene. Absent such evidence, the only other evidence is eye witness testimony and/or a

The fact is that Petitioner was not identified prior to or at trial by three of the four victims. Petitioner was only identified at trial by Luis Huesca, one of the victims. His testimony was seriously impeached. His testimony was that he was a 16 year old at time of the incident and was “high” on marijuana at the time and that his normal faculties were impaired. The identification occurred several hours after the incident took place. The identification occurred during a photo array in which the witness testified he was sure that Petitioner was the one involved in the crime despite the fact that the three other alleged victims could not identify the Petitioner. Luis Huesca, the alleged victim who could only provided identification of the Petitioner, did so with tainted information as before he picked the Petitioner out of a photo line-up he was allegedly shown a photo of the Petitioner outside the Petitioner’s home through a Patrol Officer’s computer imaging photo use of D.A.V.I.D. which brings up Driving License Photo’s of individuals. Moreover, Luis Huesca’s testimony was also seriously impeached as to what exactly occurred during the incident and that he actually told the Delray Beach Police Investigators untruths as to what occurred during the commission of the crime. The other three alleged victims could not identify the Petitioner as being present at the scene of the incident or provide an in court identification of the Petitioner as the person responsible for the alleged crime.

Additionally, Petitioner elicited testimony that during the investigation there were false identifications made, false arrests made, time line problems with the prosecution and that Petitioner had an alibi defense. As for the alibi defense, Petitioner listed his witnesses, subpoenaed them, and had them ready to testify if necessary. The Petitioner even went through great lengths to have a witness, Ronny Saint Sauver, served out of county with a subpoena and to have a transportation provided for the witness who is currently housed out of the Trial Court’s Jurisdiction. Additionally, the testimony of the State’s witness during cross examination not only failed to dispel the alibi but in some instances solidified it and bolstered the affirmative defense.

As such, going into the final day of trial, the State had no physical evidence linking Petitioner to the crime, had no scientific evidence linking him to the crime and at best a very weak identification from a witness, who on his best day, his identification was shaky at best after his testimony was questionable after being impeached during cross examination. It is hard to imagine at this point that any reasonable juror would have convicted Petitioner under these circumstances.

The only manner left in which to place Petitioner at the scene of the crime is a confession. However, Petitioner asserted his 5th amendment right to remain silent and he refused to give a statement to the police. The State realizing this and being desperate made a calculated decision to elicit testimony that improperly commented on Petitioner’s right to remain silent. If the State was successful, the lead detective would have provided testimony that would implicate Petitioner and place him in close proximity to the crime, so as to infer that the Petitioner was there when the crime allegedly occurred. If the State was not successful, then it assumed Petitioner would move for a mistrial, which would be the equivalent to hitting the reset button and it would get a new trial.

There is plenty of evidence in the record to support that the State had calculated this plan. First, is that the testimony was elicited through a veteran detective, one with more than a 21 years of experience of testifying at trial. The improper testimony elicited came while the detective was being questioned about a subject that had nothing to do with testimony he gave. It was as if the State was trying to bury it in a manner such that the inappropriate questions and answer would go unnoticed.

Moreover, it is hard to imagine that the veteran detective would make the amateur mistake of commenting on a defendant’s invocation of his right to remain silent. Not only did he blurt out the answer to the question after the objection was made, he did it on two occasions within moments of each other. Veteran detectives simply do not make these mistakes in such serious cases; none the less make the mistakes twice within moments of each other.

Next, the prosecutor’s actions speak for itself. Based upon the severity of the charges, it is suggested that the prosecutor trying the case was seasoned and experienced in trial practice, the rules of criminal procedure and a top notch trial advocate. More likely than not, the prosecutor has tried a number of jury trials. It is hard to fathom that the State would have anyone with less experience trying this case. Likewise, it is hard to fathom that an assistant state attorney trying this case does not have the knowledge and experience to know it is improper to comment on a defendant’s right to remain silent. Therefore, the prosecutor’s first attempt to elicit such impermissible testimony was more likely an intentional act, than not. But to repeat the exact same conduct a few moments later and after just being admonished by the judge for the same conduct can hardly be considered anything but intentional and deliberate. This conduct was intentional and deliberate.

When considering whether a lawyer’s misconduct is the result of an intentional and deliberate act, the lawyer is usually held to higher standard. As such, the knowing and deliberate commission of the act may be inferred to be intended and not merely negligent. See for example The Florida Bar v. Head, 84 So.2d 292 (Fla. 2012); The Florida Bar v. Brown, 905 So.2d 76 (Fla. 2005); The Florida Bar v. Fredericks, 731 So.2d 1249 (Fla. 199); The Florida Bar v. Smith, 866 So.2d 41 (Fla. 2004). This is ostensibly because a lawyer should know better. Certainly in this case, the prosecutor should have known better and in reality she did know better. If not after the first time she tried to elicit the testimony, certainly she should have known better, especially after being Ordered by the Trial Judge just three short questions before the same question again, when she in fact did it the second time.

The final piece of evidence supporting Petitioner’s argument, although subtle, is just as persuasive. This case was not a typical case in the sense that it was broadcasted on the news several times, jury selection was long and arduous, the allegations involved four minor children, which nobody wants them to endure testifying at trial again. It is not the type of case that the State would want to try again. One would think just the opposite and in fact would do anything to try and avoid trying these facts again. Yet, when Judge Miller considered a mistrial, the State stood quietly by, not once opposing a mistrial, never requesting a curative instruction, and never defending its action. The State’s silence and failure to do anything to preserve the existing panel can only lead one to believe that the State wanted the exact outcome the Petitioner requested; a mistrial. Based upon the evidence at trial, or in the State’s case, the lack of evidence, it is no surprise why the prosecutor wanted the same result. In the end there is little doubt that the State goaded Petitioner into requesting a mistrial in order to avoid an acquittal.

If Petitioner is retried he will be severely prejudiced. Without a doubt Petitioner will be financially prejudiced. He is simply out of funds and cannot afford a new trial. The undersigned has filed a motion to withdraw, as he is already owed a substantial amount of money from the first trial and is not in the financial position to try this case again pro bono. Therefore, a direct and proximate result of the State’s misconduct will require the Petitioner to get a new lawyer appointed to him to try this case. Therefore, Petitioner is deprived of having the lawyer of his choice. More importantly, it will cause Petitioner to remain incarcerated and cause him to waive his right to a speedy trial.

Aside from the new lawyer not having the same familiarity with this case, Petitioner’s new lawyer will also need additional time to be prepared for his re-trial. This translates to petitioner continuing to remain incarcerated after he has already been deprived of his liberty for 2 ½ years and already tried once for the matter in which he remains incarcerated. As it is, Petitioner had been ready for trial for more than a year and could not get his case tried until he demanded a speedy trial.

A new attorney will also require that Petitioner waive his right to a speedy trial in order to be prepared for trial. In essence he will have to sacrifice his right to a speedy trial in order to invoke his right to have counsel. It is always improper for the Defendant to be placed in that position, especially when it is caused by the State. See: Banks v. State, 691 So.2d 490 (Fla. 4th DCA 1997); United States v. Premises Located at Route 13, 946 F.2d 749, 756 (11th Cir. 1991).

Another prejudice that would be suffered by Petitioner is the complete divulgence of his defense and the ability of the State to muster additional evidence. As stated the Supreme Court stated in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426 (1980) referring to the Double Jeopardy clause:

The stated design, in terms of specific purpose, has been expressed in various ways. It has been said that “a” or “the” “primary purpose” of the Clause was “to preserve the finality of judgments,” Crist v. Bretz, 437 U.S., at 33, 98 S.Ct., at 2159, or the “integrity” of judgments, United States v. Scott, 437 U.S., at 92, 98 S.Ct., at 2194. But it has also been said that “central to the objective of the prohibition against successive trials” is the barrier to “affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S., at 11, 98 S.Ct., at 2147; Swisher v. Brady, 438 U.S., at 215-216, 98 S.Ct., at 2706. Implicit in this is the thought that if the Government may reprosecute, it gains an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own. See United States v. Scott, 437 U.S., at 105, n.4, 98 S.Ct., at 2201, n.4 (dissenting opinion); United States v. Wilson, 420 U.S., at 352, 95 S.Ct., at 1026. Id. at 128, 432-433.

Finally, an order prohibiting Petitioner from being retried and discharging him would deter future prosecutorial misconduct and thereby effectuate the guarantees of the Double Jeopardy clause contained in the Fifth Amendment. As stated above the underlying idea of prohibiting a defendant from being placed in double jeopardy is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223 (1957). This purpose will clearly be defeated if petitioner is forced to face trial again as a result of the State’s blatant goading him into a request for a mistrial.

VIII. Conclusion

The petition should be granted and a Order entered prohibiting the Honorable Karen Miller, Circuit Court Judge from retrying Petitioner and that Petitioner is forever discharged from the charges against him.

Respectfully submitted,


Andrew David Stine, Esq.

120 South Olive Avenue

Suite 402

West Palm Beach, Florida 33401

(561) 832 1170

FBN: 645761


The undersigned hereby certifies that the foregoing Initial Brief complies with Fla.R.App.P. 9.210 (a) (2) as it was prepared using 14 point proportionately spaced Times New Roman font.

Fla. Bar No.: 0645761


I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand delivered in open court to The Honorable Karen Miller, Circuit Court Judge for the 15th Judicial Circuit; Assistant State Attorney Ms. Mixon, and Sabarish P. Neelakanta, Esq. on July 16, 2012.

Andrew David Stine, Esq.

FBN: 645761

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