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Date: 11-30-2020
Case Style:
WALTER RAMONE FORD v. STATE OF FLORIDA
Case Number: 1D20-1164
Judge: PER CURIAM.
Court: FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Plaintiff's Attorney: Ashley Moody, Attorney General, and Benjamin Louis Hoffman,
Assistant Attorney General
Defendant's Attorney:
OR
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Description:
Milton, FL - Criminal defense lawyer represented defendant Francis Raymond Palazzi Sr with seeking certiorari review of an order denying his motion to dismiss the first-degree murder indictment brought against him.
In 1994, Jamal McGowan was shot and killed outside his
home. Palazzi was the main suspect in the murder, but
investigators did not obtain enough evidence to bring charges
against him. In 1996, investigators discovered evidence directly
linking Palazzi to the murder—the firearm used to kill McGowan.
An associate of Palazzi’s son, Royce Waters, confessed that the son
asked Waters to help dispose of the murder weapon.
Around the same time that investigators linked Palazzi to the
murder weapon, they learned that Palazzi made several
statements about the McGowan murder to third parties. An
informant reported that Palazzi admitted that he committed the
murder and asked his son to dispose of the firearm. Inmates at a
federal prison where Palazzi was incarcerated on unrelated federal
charges attested that Palazzi implicated his son in the murder. But
the investigation stalled while Palazzi was in federal custody.
In 2015, the cold case unit reopened the investigation into
McGowan’s murder. Investigators reconsidered the evidence
previously collected against Palazzi. After confirming previous
witness statements, the police arranged controlled meetings
between Palazzi and Waters, the person who hid the murder
weapon. Palazzi searched Waters for a wire, referred to
McGowan’s death as the perfect murder, told Waters to not speak
to law enforcement, and gave Waters hush money during these
meetings.
The next step in the investigation was obtaining a subpoena
to compel Palazzi to testify about his involvement in McGowan’s
murder. Palazzi conferred with his counsel before answering any
questions or making any statements. Counsel explained that the
3
State could not use Palazzi’s testimony against him in any criminal
investigation or proceeding. After conferring with his client,
counsel told the officer that he believed that Palazzi would take
responsibility for the murder. With this knowledge, they proceeded
with the subpoena and Palazzi admitted that he shot McGowan.
The investigation continued after Palazzi gave his statement,
and the State developed other evidence implicating Palazzi in
McGowan’s murder. In 2018, the State indicted Palazzi for firstdegree murder.
Palazzi moved to dismiss the indictment claiming that the
investigator and the assistant state attorney promised him that he
would not get in trouble as long as he told the truth. He asserted
that their promises granted him equitable immunity from
prosecution. In the alternative, Palazzi argued that the trial court
needed to hold a hearing under Kastigar v. United States, 406 U.S.
441 (1972),1 because he was absolutely immune from prosecution.
And even if he were only entitled to derivative use immunity,
Palazzi argued that the evidence supporting the indictment
derived from his immunized testimony. The trial court granted the
request for a hearing.
When the hearing began, the State clarified that it would not
seek to use Palazzi’s compelled testimony against him. And the
State conceded that it had the burden to prove that the indictment
was supported by evidence independent of Palazzi’s compelled
testimony. To meet that burden, the State called Deputy Lance
Yaeger. Yaeger explained in detail how the investigation
proceeded before and after the police obtained Palazzi’s compelled
testimony.
1 In Kastigar, the United States Supreme Court recognized
that use and derivative use immunity can compel testimony over
a claim of privilege. See 406 U.S. 441 at 453. But when faced with
an immunity claim, the government has the burden to show that
the evidence it proposes to use against the defendant is wholly
independent of the compelled testimony. See id. at 460–63.
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At the end of the hearing, the trial court denied Palazzi’s
motion to dismiss the indictment. The court found that Kastigar
did not apply to this case because the witnesses who provided
testimony against Palazzi were already known to the police when
Palazzi gave his compelled testimony. The court observed that the
State “had an extremely good case to charge Mr. Palazzi before
they ever went to talk to him.” The court also rejected Palazzi’s
assertion that the statements made by law enforcement and the
prosecutor granted him transactional immunity. Instead, it
concluded that Palazzi was entitled to only use and derivative use
immunity. Palazzi timely petitioned for a writ of certiorari to
review the trial court’s order denying the motion to dismiss.
Standard of Review
To obtain certiorari relief, Palazzi had to show: “(1) a
departure from the essential requirements of the law, (2) resulting
in material injury for the remainder of the case (3) that cannot be
corrected on postjudgment appeal.” Williams v. Oken, 62 So. 3d
1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla.,
Inc., 889 So. 2d 812, 822 (Fla. 2004)). “The latter two elements—
which are often collectively referred to as ‘irreparable harm’—are
jurisdictional and must be considered first.” Fla. Fish & Wildlife
Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 464 (Fla. 1st DCA
2015).
Analysis
Palazzi advances two reasons why this Court should grant his
certiorari petition and quash the trial court’s order denying his
motion to dismiss the indictment. First, he argues that he was
immune from prosecution and that the indictment should have
been dismissed because it was not supported by evidence
independent of his compelled testimony. Second, he argues that
even though Florida law no longer provides for absolute or
transactional immunity, representations made by the prosecution
entitled him to equitable immunity. Both arguments fail.
First, Palazzi argues that the trial court departed from the
essential requirements of law when it denied his motion to dismiss
because the indictment was not supported by evidence
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independent of his compelled testimony. But Palazzi fails to meet
the jurisdictional requirement of showing that any material injury
he may suffer could not be corrected on direct appeal. See
Magbanua v. State, 281 So. 3d 523, 527 (Fla 1st DCA 2019).
Certiorari is generally not available to review an order
denying a motion to dismiss because the petitioner has a remedy
available through direct appeal of the final judgment. See
Fieselman v. State, 566 So. 2d 768, 770 (Fla. 1990). An exception
to the general rule exists when a statute confers absolute
immunity on a defendant. See, e.g., Jefferson v. State, 264 So. 3d
1019, 1023 (Fla. 2d DCA 2018) (immunity from suit under the
Stand-Your-Ground statute); Cedars Healthcare Grp., Ltd. v.
Mehta, 16 So. 3d 914, 917 (Fla. 3d DCA 2009) (immunity from suit
under section 395.0193(5), Florida Statutes).
But Palazzi is not absolutely immune from prosecution. This
is because the immunity statute here, section 914.04, Florida
Statutes (2016), gave the prosecutor “no authority to extend
[absolute or transactional] immunity.”2 State v. Williams, 487 So.
2d 1092, 1094 (Fla. 1st DCA 1986). Although the statute once
provided for both use/derivative use immunity and transactional
immunity, the statute no longer allows a prosecutor to grant
transactional immunity. See McKay v. Great Am. Ins. Co., 876 So.
2d 666, 670 (Fla. 4th DCA 2004). And so, the only immunity the
prosecutor could offer Palazzi for his compelled testimony under
section 914.04 was use and derivative use immunity. See DeBock
v. State, 512 So. 2d 164, 167 (Fla. 1987); State v. Mitrani, 19 So. 3d
1065, 1067 (Fla. 5th DCA 2009).
2 A witness granted transactional immunity may have
absolute immunity from prosecution for the matter about which
the testimony was elicited, but use immunity is more limited and
prevents only the compelled testimony from the witness from being
used against the witness in a criminal prosecution. See State v.
Williams, 487 So. 2d 1092, 1094 (Fla. 1st DCA 1986).
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Palazzi’s claim that the prosecution may not proceed fails
because use and derivative use immunity do not bar future
prosecution against a defendant. Instead, this type of immunity
prevents “the government from using evidence derived from the
testimony, unless a source for the evidence independent of the
compelled testimony can be shown.” See McKay, 876 So. 2d at 670;
see also Zile v. State, 710 So. 2d 729, 732 (Fla. 4th DCA 1998)
(explaining that use immunity prevents the State from using the
compelled testimony against the witness in any criminal
prosecution). At the evidentiary hearing on Palazzi’s motion to
dismiss the indictment, the trial court considered the evidence
offered by the prosecution. The court found that the State met its
burden to overcome Palazzi’s immunity claim by showing that the
evidence developed against him derived from sources independent
of his compelled testimony. This finding by the trial court will not
be disturbed “unless clearly erroneous.” See Abbott v. State, 438
So. 2d 1025, 1026 (Fla. 1st DCA 1983). The trial court’s finding
that the State’s evidence supporting the indictment against
Palazzi derived from independent sources is not clearly erroneous,
and so the trial court did not err when it denied Palazzi’s motion
to dismiss.
Even if it is later learned that the State’s evidence against
Palazzi was drawn from his compelled testimony, certiorari is not
available to review the trial court’s order because Palazzi has an
adequate remedy on direct appeal. See id. (reviewing an order
denying a motion to dismiss based on a claim of use and derivative
use immunity after the entry of final judgment). The availability
of an adequate remedy on post-judgment appeal means that
Palazzi does not meet the jurisdictional requirements for issuance
of the writ of certiorari. See Magbanua, 281 So. 3d at 527.
Even so, Palazzi argues he is still entitled to certiorari relief
because the trial court should have dismissed the indictment on
equitable grounds. Palazzi points to statements by Yeager and the
prosecutor that Palazzi was not in trouble, that they did not believe
he was responsible for McGowan’s death, and that he could not get
in trouble as long as he testified truthfully. They also described the
subpoena as giving Palazzi no choice but to testify. In support of
his argument, Palazzi cites federal cases in which courts
recognized the concept of “equitable immunity.” Those courts held
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that the judiciary could “enforce” informal promises of immunity
made by the prosecutor—even when transactional immunity was
not authorized by statute. See, e.g., Rowe v. Griffin, 676 F.2d 524,
526 n. 3 (11th Cir. 1982).
A few Florida courts have considered Rowe and suggested in
dicta that equitable immunity may be available when a defendant
provides testimony in exchange for an agreement from the state
not to prosecute. See McKay, 876 So. 2d at 673 (observing that
equitable immunity could bar the state from breaching an
agreement not to prosecute if the defendant “relied on the state’s
promise not to prosecute and this reliance worked to his
detriment”); see also State v. Borrego, 445 So. 2d 666, 668 (Fla. 3d
DCA 1984) (stating that “[e]quitable immunity, if it exists in
Florida, is not present in this case”); compare Johnson v. State, 238
So. 3d 726, 737 (Fla. 2019) (holding that “general contract
principles” required the state attorney to abide by a promise from
another state attorney not to seek the death penalty if the
defendant agreed to cooperate in the recovery of the victim’s
remains).
But at least one Florida court has held that “the concept of
equitable immunity does not exist in Florida.” State v. Polnac, 665
So. 2d 1095, 1097 (Fla. 3d DCA 1996). That court held that “Florida
only recognizes immunity from criminal prosecution when that
immunity stems from a specific statutory source.” Id. We believe
that is the better view. For this reason, we hold that Palazzi was
entitled only to the use and derivative use immunity available
under section 914.04. And so, the trial court did not depart from
the essential requirements of the law by rejecting Palazzi’s claim
of equitable immunity from prosecution.
Because Palazzi failed to show irreparable injury or that the
trial court departed from the essential requirements of the law, we
dismiss his petition. See Segura v. State, 272 So. 3d 805, 806 (Fla.
1st DCA 2019); see also Citizens Prop. Ins. Corp. v. San Perdido
Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012).
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: