1

1 IN THE CIRCUIT COURT OF THE SIXTEENTH

JUDICIAL CIRCUIT OF THE STATE OF FLORIDA
2 IN AND FOR MONROE COUNTY

3 CASE NO: 2017-CF-841-A-B-C-K

4
STATE OF FLORIDA, Defendant's Motion to
5 List Former Assistant
Plaintiff, Prosecutor Colleen M.
6 Dunne as Witness
-vs-
7
JOHN TRAVIS JOHNSON, RORY
8 WILSON, and FRANKLIN TUCKER,

9 Defendants.
___________________________/
10

11

12

13 Transcript of Proceedings taken on Friday,

14 October 23, 2020, commencing at 2:03 p.m., at the

15 Freeman Justice Center, 302 Fleming Street, Key

16 West, Florida, before the Honorable Mark H. Jones,

17 Circuit Court Judge. Reported by Cathy Webster,

18 Registered Professional Reporter, Official Court

19 Reporter and Notary Public, State of Florida at

20 Large.

21

22 _______________________________________

23

24
CATHY WEBSTER, FPR, RPR
25 OFFICIAL COURT REPORTER
 2

1 APPEARANCES:

2 Christine Poist, Esq.

Patrick Flanigan, Esq.
3 Office of the State Attorney
Sixteenth Judicial Circuit
4 530 Whitehead Street, Suite 301
Key West, Florida 33040
5 cpoist@keyssao.org
pflanigan@keyssao.org
6 On behalf of the State of Florida

7 Seth LaVey, Esq.

Seth LaVey, P.A.
8 14651 Biscayne Boulevard, No. 357
North Miami Beach, Florida 33181-1211
9 Laveys@bellsouth.net
On behalf of the Defendant Johnson (A)
10
Ana Gomez-Mallada, Esq. (Via phone)
11 320 West Oakland Park Boulevard
Fort Lauderdale, Florida 33311-1710
12 agm62756@gmail.com
On behalf of the Defendant Wilson (B)
13
Cara Higgins, Esq.
14 Cara Higgins Law
Jerome Ballarotto, Esq. (Via phone)
15 608 Whitehead Street
Key West, Florida 33040
16 cara@carahigginslaw
On behalf of the Defendant Tucker (C)
17

18

19

20

21

22

23

24

25
 3

1 P R O C E E D I N G S

2 THE COURT: Unfortunately Ms. Gomez-Mallada

3 called my office five minutes ago indicating that

4 she was having car trouble, which prevented her

5 from appearing in person, and wanted to appear by

6 Zoom, whereupon she was informed (for more than

7 once) that this wasn't a Zoom hearing, and she was

8 informed to attempt to conference in with Attorney

9 Ballarotto, who was on hold for the conference call

10 with Mr. Tucker.

11 And so my assistant has been attempting to

12 facilitate that process, which the last we left at

13 was she was supposed to -- or Devonna, my

14 assistant, was going to call Ms. Higgins's office

15 or instruct Ms. Gomez-Mallada to call your office

16 to see if your office could facilitate that

17 connection.

18 So, rather than just sit back in chambers and

19 let you wonder why I'm not out here, I thought I

20 would bring this information to everyone's

21 attention, and maybe Ms. Higgins can have

22 communication with her office. I don't know. But

23 that's why I can't start on time.

24 MR. LAVEY: Understood, your Honor.

25 MS. HIGGINS: I haven't received any messages

 4

1 from my office, but I will check in right away.

2 THE COURT: Okay. So I'll go back into the

3 chambers and hopefully this technical difficulty

4 can be resolved in short order.

5 (Court in recess at 2:05 p.m. and resumes at

6 2:12 p.m.).

7 THE COURT: Supposedly this call has been put

8 together with the help of Ms. Higgins's office, so

9 let's see.

10 Good afternoon. This is Judge Jones.

11 MS. GOMEZ-MALLADA: Good afternoon, your

12 Honor.

13 MR. BALLAROTTO: Good afternoon.

14 MS. GOMEZ-MALLADA: This is Ana Gomez-Mallada,

15 on behalf of Rory Wilson.

16 MR. TUCKER: Franklin Tucker, the defendant.

17 MR. BALLAROTTO: Jerry Ballarotto also on the

18 phone, your Honor.

19 THE COURT: All right. Well, you're on a

20 speaker phone in Courtroom B in the Freeman Justice

21 Center in downtown Key West.

22 This is 17-CF-841-A-B-C, State v. Johnson,

23 Wilson, and Tucker.

24 Ms. Gomez-Mallada, what happened, ma'am?

25 At the last minute my office gets a call that

 5

1 somehow you have some issue with appearing, which

2 has been very disruptive, so could you kind of tell

3 me what happened?

4 MS. GOMEZ-MALLADA: What do you mean "what

5 happened," your Honor?

6 THE COURT: Well, what happened whereby extra

7 efforts had to be made to conference you in. What

8 happened?

9 MS. GOMEZ-MALLADA: I don't know that extra

10 efforts were made to conference me in as opposed to

11 everybody else.

12 THE COURT: No, ma'am. You informed my

13 assistant that you had car trouble and were going

14 to appear by Zoom, where everybody knew that this

15 wasn't a Zoom hearing. So people who were already

16 on the line, we had to coordinate conferencing you

17 in, and I just wonder what the problem was.

18 MS. GOMEZ-MALLADA: I don't know that there is

19 a problem. I thought it was a Zoom hearing and I

20 heard about half an hour ago that it was not.

21 THE COURT: Okay. Well, I'll just leave it at

22 that, but you need to be a little bit more attuned

23 to exactly what's going on in terms of the nature

24 of the appearance, the coordination thereof, the

25 dates, and the like, and hopefully this won't

 6

1 repeat itself come the 27th, when your motion is

2 set, and you've indicated and expected to be here;

3 right?

4 MS. GOMEZ-MALLADA: In person. Yes, your

5 Honor. I know that.

6 THE COURT: Okay. So somehow or other my

7 assistant said that you had two flat tires, she was

8 informed by you. Unless she heard incorrectly,

9 hopefully that will be remedied, so you'll be able

10 to travel down.

11 MS. GOMEZ-MALLADA: I'm on my way to remedy it

12 now with my dealership, Judge.

13 THE COURT: Okay. So we have a lot of people

14 here in the courtroom.

15 Mr. Tucker is on the phone. Mr. Ballarotto is

16 on the phone. Ms. Gomez-Mallada is on the phone.

17 Mr. Wilson's here. Mr. Johnson's here. Mr. LaVey

18 and his assistant is here. Ms. Higgins is here.

19 Ms. Poist and Mr. Flanigan are here from the State.

20 I don't know who the --

21 MS. HIGGINS: That's my assistant, your Honor.

22 Amy.

23 THE COURT: Excuse me?

24 MS. HIGGINS: That's my assistant, your Honor.

25 Amy.
 7

1 THE COURT: Okay. Fine. It's open. I just

2 wanted to identify everyone.

3 I also at the beginning of the hearing did

4 want to inform everyone that Ms. Dunne had called

5 my office probably -- I don't know -- three weeks

6 ago -- that's just an approximation -- asking for

7 the Zoom information because she desired to appear.

8 And she was told by my assistant that we

9 weren't doing Zoom but that she could appear in the

10 courtroom if she so desired, but it might be wise

11 to consult with the State, if that was what she was

12 thinking. And then she advised -- and, again, this

13 was in a conversation she had with my assistant,

14 not myself -- but that she was prohibited from

15 speaking with the State, and that's where it was

16 left. That's innocent enough.

17 But, again, in an abundance of caution, I make

18 that disclosure.

19 So we have a couple of things that are set.

20 Obviously the major motion is in regard to the

21 defendants' desire to list Ms. Dunne as a witness,

22 but there was some motion to seal with some

23 proposed order. I frankly didn't know whether that

24 was something ya'll wanted me to execute, but I

25 didn't get that impression. I got the impression

 8

1 it was just going to be addressed quickly at the

2 hearing and everybody agreed to the form of the

3 order.

4 MS. POIST: Yes, your Honor. We did file the

5 motion. The parties contacted me. None of them

6 had an objection to the motion. I did send the

7 order to them. They all approved the order. It

8 was sent to Ms. Alce on 10/7.

9 We'd ask the Court to sign the order.

10 MR. LAVEY: That's correct, Judge.

11 MS. HIGGINS: Yes, your Honor.

12 THE COURT: All right. And,

13 Ms. Gomez-Mallada, you too are in agreement with

14 that order; is that correct?

15 MS. GOMEZ-MALLADA: Yes, your Honor.

16 THE COURT: Okay. And then you had, on behalf

17 of Mr. Wilson, filed some motion to transcribe the

18 deposition that was taken on September 28th and

19 also followed that with a couple of other motions

20 to transcribe, and I set those today.

21 Frankly, I was under the impression that one

22 of the other attorneys was very desirous of having

23 that deposition transcribed and it was already done

24 or would be done absent my court order for

25 Mr. Wilson, but that was just the impression I had.

 9

1 I mean, Ms. Higgins indicated it was her belief

2 that that witness was going to be favorable to

3 their side and they were very anxious to have it

4 done. So I just assumed, seeing that they've

5 transcribed just about everything else, that that

6 was going to be included.

7 MS. HIGGINS: Yes, your Honor. They have

8 already been transcribed. Ms. Gomez-Mallada --

9 MS. GOMEZ-MALLADA: May it please the Court --

10 THE COURT: Ma'am, I'm trying to listen to

11 Ms. Higgins and certainly you can chime in just as

12 soon as I'm finished with her input.

13 Go ahead.

14 MS. HIGGINS: Yes, your Honor.

15 They have already been transcribed and

16 Ms. Gomez-Mallada is aware of the court reporter

17 and the court reporter's office that did the

18 transcribing.

19 THE COURT: Okay. When you say "they," is it

20 other depositions in addition to the one on the

21 28th?

22 MS. HIGGINS: No, your Honor. They were all

23 on the 28th, but what happened was the State called

24 Mrs. Belmonte or Ms. Belmonte as the State's

25 witness. Then we called her as our witness.

 10

1 Mr. LaVey called her as his witness. So there's

2 three different deposition transcripts: same

3 witness, same day, same court reporter.

4 THE COURT: Okay. So, yes, Ms. Gomez-Mallada;

5 now it's your turn.

6 MS. GOMEZ-MALLADA: Your Honor, I need the

7 deposition of Paula Belmonte because she is a

8 person who picked my client out of a lineup, a

9 person who testified most vehemently that he

10 manhandled her and sliced her throat.

11 THE COURT: I'm not disputing your need. I'm

12 not disputing your need. I'm only saying it's

13 already been transcribed, and so I can't see the

14 wisdom of paying for another person to transcribe

15 it. Maybe you need costs to get a copy. I don't

16 know what the arrangement is with the court

17 reporter, but it's already been transcribed.

18 Ms. Poist.

19 MS. POIST: Your Honor, because we had asked

20 for the deposition to perpetuate, we were

21 responsible for the cost. I saw that a link went

22 out and I thought it had gone to all the parties,

23 where you basically clicked on a link and you

24 downloaded the deposition transcript. So we

25 downloaded our own. I believe that that's what the

 11

1 other defense counsel did.

2 I can certainly resend the link to

3 Ms. Gomez-Mallada. I can send her a copy, but we

4 did receive a link with a download to the actual

5 documents, and we are all in possession of it.

6 THE COURT: Did you hear that?

7 MS. GOMEZ-MALLADA: Yes, sir, I heard it, and

8 that will do it. All I needed -- I certainly don't

9 need a (indiscernible). I needed a copy that I can

10 show to my client of a very important witness.

11 And as to the transcription of the depositions

12 that were taken October 15th and 16, my client did

13 raise a specific list of witnesses he wanted

14 deposed. I sent most of those for that very

15 purpose. He wants them and, therefore, I'm asking

16 for them.

17 THE COURT: Okay. I don't know if they've

18 already been transcribed or not.

19 Who are we talking about, ma'am?

20 MS. GOMEZ-MALLADA: Well, that's also the two

21 that I'm interested in. And I put in a motion for

22 fees and I don't know what the issue is. There is

23 a lead we want to run down, and that takes -- I

24 don't know if it's going to take all that much

25 money, but I'm a very conservative person. If it's

 12

1 not used, it won't be spent.

2 THE COURT: Okay, ma'am. I'm sorry. You're

3 talking about things that I'm not talking about

4 yet. So --

5 MS. GOMEZ-MALLADA: Okay.

6 THE COURT: As far as Ms. Belmonte's

7 deposition, you'll be sent the link again. Again,

8 I think you better maybe double check your e-mails

9 so we don't have this confusion about these

10 details. I'm not going to order separate costs

11 when it's available by, you know, just utilizing

12 this link.

13 As far as the other depositions that you've

14 made a motion for, I'll grant those costs. We'll

15 need an order.

16 Now you're talking about investigative costs;

17 is that right?

18 MS. GOMEZ-MALLADA: Yes, your Honor. I

19 submitted a motion for more investigative costs. I

20 don't know that we need all that much money.

21 THE COURT: Well, what I don't understand is

22 what's happened to the six grand that they've

23 already received. That's why I didn't sign the

24 order because this outfit has been already

25 authorized $6,000, and I just wonder --

 13

1 MS. GOMEZ-MALLADA: He's been to the jail

2 numerous times. He's been to interview witnesses,

3 look for witnesses. He's done a lot of work.

4 THE COURT: And has there been an itemized

5 invoice?

6 MS. GOMEZ-MALLADA: That's where it went, your

7 Honor.

8 THE COURT: Has there been an itemized

9 invoice?

10 MS. GOMEZ-MALLADA: I'm sorry?

11 THE COURT: Has there been an itemized

12 invoice?

13 MS. GOMEZ-MALLADA: That's how they are

14 submitted to JAC, your Honor. They have to be

15 itemized.

16 THE COURT: Well, I was just curious what

17 happened --

18 MS. GOMEZ-MALLADA: Yes.

19 THE COURT: Okay. We'll grant it. We just

20 need to be sure we get the order on those other

21 deposition transcripts and on the investigative

22 fees, and so we'll grant it.

23 So now we'll move on to the main course, so to

24 speak, with which is the defendants' motion to list

25 former Assistant State Attorney Colleen Dunne as a

 14

1 defense witness.

2 I believe -- I'm not sure who moved for it

3 first -- not that it matters -- but I'm just trying

4 to identify an order of argument and also some sort

5 of ground rules as far as how much time. I said an

6 hour. I'm not going to count the first 25 minutes

7 against the hour.

8 So it seems to me that it ought to be

9 30 minutes from the defense and 30 minutes from the

10 State, if all that -- I can't imagine all that much

11 time is needed. But it would seem to me that

12 dividing that time between the defense lawyers and

13 then the State with their argument, that should be

14 fair.

15 MS. HIGGINS: Yes, your Honor.

16 MR. LAVEY: Yes, Judge.

17 THE COURT: All right. So thank you.

18 So --

19 MS. HIGGINS: We filed -- I filed the motion,

20 your Honor, on behalf of Mr. Tucker.

21 So may I approach the podium?

22 THE COURT: Yes.

23 MS. HIGGINS: Your Honor, with regard to the

24 transcript that we just discussed, Paula Belmonte,

25 I have two that I will be referring to. If the

 15

1 Court would like a copy, I have those transcripts

2 for the Court.

3 THE COURT: I'm sorry. They're the transcript

4 of --

5 MS. HIGGINS: Paula Belmonte's deposition from

6 the 28th.

7 THE COURT: Okay. Well, if you think you're

8 going to be making certain references, I guess. If

9 one of you gentlemen doesn't mind acting as a --

10 shoveling it up here, I'd appreciate it.

11 Thank you.

12 MS. HIGGINS: Thank you, your Honor.

13 And, your Honor, once again, this is Cara

14 Higgins, on behalf of Franklin Tyrone Tucker.

15 Your Honor, sometime ago, as the Court is

16 aware, we placed then attorney Colleen Dunne on our

17 witness list because we knew at that time she had

18 taken an active and intimate role in the

19 investigation in this case and she participated in

20 copious amounts of interviews with the

21 co-defendants and other witnesses.

22 The State objected and the Court sided with

23 the State and struck her from our witness list.

24 The Court's prior ruling is the only thing

25 preventing us from calling Ms. Dunne in to be

 16

1 deposed. Nothing in the statutes prohibits it. No

2 case law prohibits it. Nothing in the rules

3 prohibits it.

4 Since that time we have learned and continue

5 to learn about Colleen Dunne's disturbing,

6 alarming, and potentially criminal conduct in this

7 case. Since that time Dunne has been disciplined

8 by the Florida Bar. She's been suspended, publicly

9 reprimanded, and punished for lying to the Court,

10 hiding evidence, and lying to defense counsel.

11 She's no longer able to practice law, nor is she

12 employed by the State Attorney's Office.

13 And, as the Court represented, she represented

14 to your office just today that she's prohibited

15 from even speaking to the State Attorney's Office.

16 THE COURT: No. No, that call was three weeks

17 ago or so, I said.

18 MS. HIGGINS: Okay. But we -- I just learned

19 about it today, your Honor.

20 THE COURT: Okay.

21 MS. HIGGINS: Any argument, any case the State

22 cites, any argument they assert about Colleen Dunne

23 being somehow protected and immune from even being

24 deposed in this case is simply not true and

25 subverts justice.
 17

1 We are and have been talking about Dunne's

2 ultra vires conduct, not some legitimate conduct on

3 the part of a prosecutor or an officer of the

4 Court, the conduct of an admitted liar.

5 There is no privilege. There is no good faith

6 objection the State can advance.

7 As the Court knows, the State and the defense

8 took the deposition of surviving victim Paula

9 Belmonte on September 28. We submit that this

10 deposition has radically changed this case and it

11 corroborates what we've been telling this Court

12 from the day we became involved. Not only is

13 Franklin Tucker innocent but he is the victim of

14 the most blatant prosecutorial misconduct this

15 jurisdiction has ever seen.

16 The State's conduct continues to shock and

17 alarm us. On September 28th the State called Paula

18 Belmonte to the stand in what appeared to be a

19 well-rehearsed direct examination of the State.

20 Not the State, nor Ms. Belmonte, ever mentioned

21 Franklin Tucker.

22 She was never asked to identify him. She was

23 never asked whether or not he was involved.

24 Why?

25 That's what we had to discover by calling her

 18

1 as our witness. The defendant in a felony murder

2 prosecution called the State's surviving victim as

3 our witness.

4 And what did she tell us?

5 Your Honor, I handed you the transcripts.

6 In our deposition of Paula Belmonte, she

7 testified that Ty was not involved.

8 On page 10 of the deposition she was asked,

9 "Question: When you found out later that he had

10 been arrested, you discussed that with Detective

11 Pitcher; correct?

12 "Uh-huh.

13 "And what did you say to Detective Pitcher?

14 "Answer: 'Are you sure?'

15 "And I said, 'Oh, there was a third person?'

16 "I just kept saying, 'Are you sure?' because I

17 just don't see it.

18 "Question: You said that to Detective

19 Pitcher --

20 "Answer: Yeah.

21 "-- that you don't see it?

22 "Answer: I don't see it.

23 "And what -- what did you mean when you said

24 you don't see it?

25 "I just don't see it. It doesn't add up in my

 19

1 mind, what I know of Tyrone."

2 On page 12, "She said, 'It's not Tyrone.'

3 That's why I kept saying, 'Are you sure?'"

4 "And he kept saying 'Yes, they were sure.'

5 "Question: Well, what was his" -- meaning

6 Detective Pitcher's -- "response when you kept

7 telling him that Ty is not the man?

8 "Well, he just kept saying he didn't -- I

9 didn't know Tyrone like they know Tyrone. He's

10 very -- God, what was the word? Manipulative?

11 Excuse me. Very manipulative.

12 "Okay.

13 "And that he had this record. And I just

14 didn't know Tyrone like they know Tyrone. So at

15 one point I was almost believing it because you're

16 supposed to believe the police; right?"

17 She told us that she told Detective Pitcher

18 this ten times.

19 On page 15 --

20 THE COURT: But wait a minute. I mean, told

21 him what? That she just doesn't believe it. I

22 mean, so?

23 MS. HIGGINS: Because she was there.

24 THE COURT: I mean, if there was some facts or

25 something. But right now the fact that -- I see it

 20

1 all the time where people say, "I can't believe. I

2 know this person. They couldn't possibly do that."

3 I mean, that's what I understand that

4 testimony to be.

5 MS. HIGGINS: No, your Honor. The transcript

6 is replete with her testimony where she testifies

7 that based on her knowledge of Tyrone, based on his

8 voice, based on his stature, based on what she

9 experienced, based on what she saw, it was not him.

10 And she maintains that it was not him from the

11 night of the incident.

12 She told Detective Pitcher over ten times on

13 page 15, "It was not him."

14 And then, your Honor --

15 THE COURT: But, but, wait a minute.

16 MS. HIGGINS: Your Honor, she actually

17 testified that she feared retribution by the State

18 Attorney's Office and by the Monroe County

19 Sheriff's Department because she wasn't going along

20 with the narrative.

21 THE COURT: I know, but you're not being

22 helpful. I mean, if you want to persuade me,

23 unless you answer my question.

24 Was she looking at a lineup and said, "No,

25 that No. 6 is not him"?

 21

1 Was she saying "I saw the man who did it and

2 it wasn't him" or is she just saying, "No, it's not

3 the guy I know"?

4 I mean, help me understand the exact nature of

5 this testimony.

6 MS. HIGGINS: She was never shown a lineup.

7 She said it was not him. She knew him. She knew

8 what he looked like. She knew what he sounded

9 like. She knows of him. She knows his gait. She

10 knows his stature. It was not him.

11 THE COURT: But, again --

12 MS. HIGGINS: And what she said, your Honor,

13 was that it was Anathea Clay. She said from the

14 night of the incident she told the police that she

15 was 100 percent sure that Anathea Clay was the one

16 that was involved.

17 And, if you look at her testimony starting on

18 page 14, she said, "I told everyone I came across.

19 I told the police. I told everyone that's involved

20 I'm 100 percent sure."

21 And she said, "Question: While the police

22 were arresting Ty, who you said wasn't involved,

23 you were telling the police that you thought

24 Anathea Clay was involved and were they doing

25 anything about it?

 22

1 "Answer: Well, I don't know exactly when they

2 arrested Tyrone, but I had said from the get-go

3 that Anathea Clay is the person they needed to look

4 for who set this up. As far as I'm concerned

5 Tyrone had nothing to do it.

6 "Didn't do anything?

7 "No. I even gave them Anathea's -- I even

8 told them where Anathea lived and supposedly they

9 couldn't find her."

10 THE COURT: You still haven't answered my

11 question, but that's all right. Go ahead, make

12 your argument.

13 MS. HIGGINS: Your Honor, all I can suggest is

14 that the Court read the transcripts because what I

15 have answered is that she said based on her

16 experience, based on being there, based on her

17 knowing him that it was not the man that attacked

18 her.

19 THE COURT: I just asked about any kind of

20 identification. That's what I asked, as opposed to

21 just character. If the man's voice -- "I heard a

22 voice and it wasn't him."

23 "I saw a person" --

24 MS. HIGGINS: Yes.

25 THE COURT: -- "person, it wasn't him."

 23

1 That's what I'm trying to pinpoint, not her,

2 just her opinion of his character.

3 MS. HIGGINS: No. And, your Honor, that's

4 what -- and, you know, perhaps it's mis-

5 communication on our part. But what I'm telling

6 you is the transcript is replete where

7 Mr. Ballarotto repeatedly asked her, "What are you

8 basing this on?"

9 "Are you basing this on the sound of his

10 voice?"

11 "Yes. I know his voice. It wasn't him based

12 on his voice."

13 "I know what he looks like, it wasn't him

14 based on what he looked like."

15 "It wasn't him based on his stature, based on

16 his size."

17 The transcript is replete with her going

18 through all of the reasons why she says it was not

19 Mr. Tucker, and it's not just opinion. It's the

20 fact. It's what she saw. And she knew Franklin

21 Tucker. She knew him. She participated in lunch

22 at McDonald's with him after the murder occurred,

23 and she told Detective Pitcher ten times it wasn't

24 him. She testified that she feared retribution

25 because she wouldn't go along with it.

 24

1 And then the question was asked, "Did you ever

2 tell the current prosecutor, Christine Poist, that

3 you didn't think Ty was involved?

4 "Answer: Yes.

5 "Did you tell her on more than one occasion?

6 "Answer: Yes.

7 "Several occasions?

8 "Answer: A few.

9 "Question: Prior -- prior to today's

10 testimony?

11 "Answer: Yes."

12 That's on pages 24 and 25.

13 Yet, contrary to Brady, the State did not

14 bring this up on her direct examination. Never

15 once did the State disclose to us or this Court

16 that the surviving victim repeatedly told them Ty

17 Tucker was not involved but that Anathea Clay was.

18 Anathea Clay, if the Court remembers, is the

19 one Colleen Dunne lied to this Court about in

20 August of 2019 by saying she "wished" she could

21 find her, the one Colleen supported false testimony

22 from Detective Matthew Pitcher about at the Arthur

23 hearing, causing my client to spend 700 days in

24 jail.

25 How is this work product, your Honor?

 25

1 How is Dunne somehow immune from her conduct?

2 How is she immune from being deposed?

3 The same Anathea Clay that wrote a confession

4 on the wall of the treehouse. Dunne knew about it

5 and she concealed it from us. We can't ask her

6 about that?

7 The State cites to Shelton and Zimmerman and

8 says the defendant has other discovery means

9 available.

10 We've tried, your Honor. We've tried to get

11 the grand jury transcripts. The State opposed and

12 our motion was denied.

13 We asked the Court to reconsider. Our motion

14 was denied without so much of an explanation.

15 Both of those cases, both Shelton and

16 Zimmerman that the State cites actually support the

17 defendant receiving grand jury transcripts as a

18 part of discovery that the defendant is supposed to

19 exhaust before putting a current prosecutor, a

20 current state attorney, current opposing counsel on

21 the stand, not some suspended disgraced attorney

22 who hasn't been with the state attorney in some

23 time, will not be trying this case, has no concern

24 about trial strategy or work product.

25 We want to know what did Colleen Dunne present

 26

1 to that grand jury, when we know she's violated

2 Brady. She's lied to the Court in this case, and

3 she has a history of doing it. Her testimony is

4 not only relevant but there's no privilege and it's

5 crucial for the preparation of our case.

6 Colleen Dunne lied to this court about Naheem

7 Jackson. He was a paid informant for the Monroe

8 County Sheriff's Department. She allowed Detective

9 Pitcher to lie on the stand at the Arthur hearing

10 and say he was just some disinterested do-gooder at

11 the jail, when she knew he was not only working but

12 he was working off his charges. We can't ask her

13 about that, your Honor? Why?

14 She lied to this Court about Belinda Corrales.

15 THE COURT: You've got to help me understand.

16 How is that relevant to your defense? I mean,

17 obviously you want to, you know, damage Ms. Dunne

18 further. But how is it relevant to the defense? I

19 don't understand. Maybe you could help me

20 understand.

21 MS. HIGGINS: The State has listed Naheem

22 Jackson as a witness. He was not just a witness,

23 as they said. He was a paid confidential informant

24 working off charges with obviously a motive to lie.

25 Further --
 27

1 THE COURT: Okay. I'm not willing to accept

2 that hook, line, and sinker. But, nevertheless, so

3 Ms. Dunne's involvement is going to do what for

4 you?

5 MS. HIGGINS: Your Honor, it shows the

6 conspiracy. It shows a pattern of behavior and

7 conduct on the part of not only Colleen Dunne but

8 also the State Attorney's Office and the Monroe

9 County Sheriff's Department to pin charges on

10 someone that they knew from the beginning was not

11 involved in this case.

12 When the State couldn't prove their case, they

13 used a hired lying witness to put in that jail

14 cell.

15 And it's also, your Honor, a violation of my

16 client's constitutional right. We have every right

17 to ask her about why she did that, who directed her

18 to do that, who knew about that.

19 These police officers were involved in all of

20 this. And they're going to put this person on the

21 stand. They denied my -- this Court denied my

22 client bond based on this testimony.

23 THE COURT: Are you bringing a suit for

24 malicious prosecution here or are you defending a,

25 you know, a charge?

 28

1 MS. HIGGINS: You know, your Honor, we're

2 trying to defend against these charges and

3 unfortunately we've got the State consistently

4 violating Brady, violating my client's

5 constitutional rights, not telling us the truth,

6 concealing evidence.

7 We need to know what Colleen Dunne knows about

8 this case so that we can get it prepared for trial.

9 And, your Honor, we're pretty satisfied that this

10 is not going to be the end of this case. But, your

11 Honor, we have absolutely every right to know about

12 who was involved, why they never looked for Anathea

13 Clay, why they allowed a paid informant to come to

14 testify and to give them information, and then why

15 did the detective in charge of the case came to you

16 and testified about what he told them.

17 How involved was Colleen Dunne?

18 What does the State know and why are they

19 protecting her?

20 You would think that the State would want to

21 know exactly what Colleen Dunne did in this case

22 based on everything that we have presented, but yet

23 they continue to protect her.

24 Why?

25 She lied about Belinda Corrales, told this

 29

1 Court she couldn't find her. Same thing with

2 Anathea Clay; right? She was in the county jail

3 the entire time. She interfered with my client's

4 constitutional rights to marry when he was in the

5 jail telling the sheriff's office that you, your

6 Honor, said no. How is that work product?

7 She gets to hide under a rock because she's a

8 disgraced attorney and a former prosecutor. That's

9 not what the law intended.

10 THE COURT: Do you think using inflammatory

11 language is going to persuade me? You know, it

12 would be much more helpful if you could just really

13 explain the relevance as opposed to just, as I say,

14 using inflammatory language.

15 MS. HIGGINS: Your Honor, the relevance to

16 this case is that Colleen Dunne was involved in

17 numerous interviews with the co-defendants, with

18 the witnesses that the State are going to put on

19 the stand to testify against my client. She worked

20 with the sheriff's department. She was there the

21 night of the crime. She was intimately involved in

22 this investigation.

23 What did she tell that grand jury? What did

24 she tell that grand jury that got my client

25 indicted?
 30

1 She absolutely can be called in this case.

2 And, in a case this egregious, she absolutely needs

3 to be called. We want the Court's permission to

4 relist her, depose her. And, based on the new

5 evidence that Paula Belmonte just told us, we ask

6 the Court once again to provide us with those grand

7 jury transcripts. We want to see what she told

8 that grand jury and why our client was indicted in

9 this case in the first place.

10 Her testimony is absolutely relevant and

11 hopefully it will fill in a lot of the questions

12 that we have as to why we are even standing here

13 today, why my client spent over 700 days in jail

14 charged with this, when the State's surviving

15 victim says it wasn't him and has maintained that

16 since the night of the crime.

17 Now, your Honor, frankly we think that all of

18 this some day will come out, whether it's going to

19 be in this case, whether it's going to be in some

20 subsequent civil action. But the question everyone

21 will be asking was why was justice perverted. Why

22 didn't anyone protect this defendant? Why was the

23 only concern about protecting an admitted liar like

24 Colleen Dunne?

25 THE COURT: Thank you.

 31

1 Mr. LaVey, did you have an argument you would

2 like to present?

3 MR. LAVEY: I do, Judge.

4 May I proceed, your Honor?

5 THE COURT: Yes.

6 MR. LAVEY: Judge, I am too going to use some

7 very inflammatory words, but I also have a lot of

8 facts to back them all up, Judge, and they're all

9 very accurate and they are going to hit their mark.

10 Now, I think we need to take a look at this in

11 the bigger picture and then boil it down to how it

12 really comes to fruition in this case.

13 In the bigger picture, you have Colleen Dunne,

14 who before COVID 19 was probably the biggest plague

15 that has spread through Florida and particularly

16 the Sixteenth Judicial Circuit.

17 Now, you have a prosecutor -- and I can tell

18 you this, Judge. As a former prosecutor, it's not

19 possibly criminal conduct. It is criminal. She

20 has committed criminal acts in numerous cases

21 around this jurisdiction.

22 I will start with the case that predates your

23 Honor's involvement with Ms. Dunne on this case,

24 and that was the William Thomas Skinner case.

25 That's the case that Ms. Dunne is suspended for. I

 32

1 am proud to tell your Honor that I was involved in

2 that, that I was listed as a Bar witness against

3 Ms. Dunne, as was Ms. Higgins listed as a Bar

4 witness against Ms. Dunne.

5 Now, I took the depositions actually in that

6 case of Ms. Higgins, who was shocked to find out

7 that there was even a Bar complaint pending against

8 Colleen Dunne because she was defending this

9 particular case. Colleen Dunne was prosecuting

10 this case with a Bar complaint pending against her

11 involving Ms. Higgins. I mean, it's just -- and

12 she didn't notify anybody. She didn't tell anybody

13 this. She didn't disclose it to anybody. And she

14 ultimately admits, admits in a written statement,

15 that she hid evidence from Ms. Higgins, in

16 particular, in that case; that she lied under oath

17 in a deposition later taken by myself in that case;

18 and she admitted that she later misrepresented

19 herself to the Court in that case; and she agreed

20 to a one-year suspension.

21 Now, since that case, Judge, it's just come to

22 my attention there's another Bar complaint pending

23 against her in front of -- involving a matter that

24 involves your Honor. It was a case of Lacy Morris.

25 Now, as it turns out -- this has just been

 33

1 brought to my attention by an attorney in Delray

2 area, or West Palm Beach -- Delray. I apologize.

3 In that case you had an alleged victim of a DUI

4 manslaughter, Christine Braswell. Her best friend,

5 Lieutenant Nicole Guerriero, was Colleen Dunne's

6 girlfriend at the time. They were seeing each

7 other. They were in a relationship at the time.

8 Colleen Dunne had permission to pick up her child

9 from school in Delray at the time that she was

10 prosecuting this case.

11 Now I notified the defense attorney, Evan

12 Hoffman. He was shocked to find out. I spoke with

13 him this afternoon. Shocked to find out.

14 Needless to say, Colleen Dunne never disclosed

15 to Mr. Hoffman that she was dating the victim's

16 best friend, that she was in a relationship with

17 the victim's best friend.

18 I assume that she did not disclose that to

19 this Court either, but that's Ms. Dunne's practice.

20 She lies. She does criminal conduct and she hides

21 behind a badge for the longest of times to

22 accomplish it. She has disgraced this jurisdiction

23 and she's called upon others to come in and police

24 it and that's just not right.

25 You have a -- my client, William Thomas

 34

1 Skinner, is a retired police captain. He had to

2 come and police this jurisdiction and take it to

3 the Florida Bar. He's the one that made that

4 complaint, not the sitting judge who found that

5 Colleen Dunne had committed a violation and

6 disqualified her from the case, despite the

7 obligation to do so.

8 Two years later Ms. Dunne has been given what

9 in essence is a license to run rogue in this

10 jurisdiction.

11 I know that there's political issues going on

12 around now with Colleen Dunne. That's how tainted

13 she's made this whole jurisdiction. The opposition

14 to Dennis Ward now is suggesting a special

15 committee to review every single case that Colleen

16 Dunne has ever touched because of her numerous

17 improprieties. Every time they look at a case that

18 she's involved in, it leaves you scratching your

19 head and shaking your head and saying, "Oh, my God.

20 How has this been going on."

21 When I came into this case, I came in

22 midstream. It was almost irony in and of itself,

23 and then I found out all the times that she's

24 misrepresented herself to this Court involving the

25 issues with Naheem Jackson. I mean, just ball-face

 35

1 lying to the Court to accomplish her way.

2 Now, if we can't step in and take her

3 deposition and try to figure out something is going

4 on, the integrity of the entire system here, the

5 entire Sixteenth Judicial Circuit is in jeopardy.

6 And that's what we're really talking about is the

7 integrity of the prosecutions down here, the

8 integrity of the courts down here.

9 Ms. Dunne has been allowed to do this.

10 I took Dennis Ward's deposition in May of 2019

11 and I asked Dennis Ward at that time. There was

12 probable cause pending -- probable cause was found

13 against Ms. Dunne. And I asked Dennis Ward, "What

14 are you doing to supervise her or shield her or

15 make sure that she's not doing this stuff?"

16 "Nothing" is his answer.

17 Absolutely nothing.

18 In the William Thomas Skinner matter, we're

19 still pursuing a motion to disqualify the State

20 Attorney's Office in that matter because it's our

21 position that Dennis Ward was complicit with

22 Colleen Dunne in that. He knew about it. I have

23 the e-mails that show that he knew about it and

24 prompted her to do it. So that's where we're at

25 with Colleen Dunne.

 36

1 And unfortunately she has now again tainted

2 this case. She's created a nightmare in this case,

3 an absolute nightmare. And I would submit to your

4 Honor that any case that she's ever been involved

5 in, any case that somebody is sitting in prison or

6 jail, or any case that even somebody has a felony

7 conviction needs to be examined just to preserve

8 the integrity of the Sixteenth Judicial Circuit.

9 And that should start here by allowing us.

10 She doesn't -- she's not even a current

11 attorney, let alone a prosecutor. She'll never be

12 a prosecutor again and, God willing, she won't be

13 an attorney again either, so she can't do this

14 again, can't put innocent people in jail, can't

15 plant evidence, can't withhold evidence.

16 Now, in this case, Judge, every time we take a

17 deposition -- and I apologize. I'm losing my

18 breath with the mask.

19 (Pause in the proceedings.)

20 MR. LAVEY: All right. Now, every time we

21 take a deposition in this case, it turns out that

22 Colleen Dunne wasn't just a prosecutor in the case.

23 She's actively involved in the execution of the

24 search warrants. She's there on scene. She's

25 going in the house. God knows what she's doing.

 37

1 Every time we depose a witness we discover a

2 new violation that Colleen Dunne has committed.

3 Now, in the Paula Belmonte deposition, Paula

4 Belmonte said she knew Tyrone Tucker. She said

5 that she knew Tyrone Tucker because in knowing

6 Tyrone Tucker, she knew how tall he was. She knew

7 his stature. She knew his weight. She knew his

8 voice. She had met him at least, I think, five,

9 six, seven times before she said. She was

10 familiar. She had conversations with him. She

11 knew him.

12 And she said on the night of the murder there

13 were two people. She identified one as Mr. Wilson,

14 who she claimed she knew it was him and she

15 recognized him from knowing him earlier, even

16 though he had a mask on as well. And there was a

17 second masked person who she said, based on his

18 height, was not Tucker's height. His weight was

19 not Tucker's weight. When the person spoke, he

20 didn't sound like Tucker. His voice was very high

21 and pitchy. It wasn't his voice. And she knows

22 how he walks. And when she saw him walk, it wasn't

23 the walk of Tucker.

24 And then she said she saw Tucker two days or

25 three days after the incident and she had a meal

 38

1 with him at McDonald's and they spoke, and she's

2 sitting there next to him, she sees the stature

3 again.

4 She told Pitcher, Detective Pitcher, who's

5 Penny Phelps's sidekick. And we all know about

6 Captain Penny Phelps. She's another one.

7 And, mind you, Judge, when Captain Penny

8 Phelps was getting in trouble for this matter, I

9 have pictures of her and Colleen Dunne celebrating

10 in Disney World right after Captain Phelps got

11 fired. Celebrating in Disney World together,

12 Captain Phelps and Colleen Dunne together,

13 celebrating in Disney World, after Captain Phelps

14 gets fired for her impropriety in this case.

15 THE COURT: What's wrong -- what does that

16 have to do with anything?

17 MR. LAVEY: It's showing the connections

18 between them, Judge. It's showing how corrupt it

19 was from the captain of the police department to

20 the head prosecutor running it, the State

21 Attorney's Office. After they're getting fired,

22 they're partying in Disney World. You don't find

23 that a little bit alarming?

24 THE COURT: No, actually I don't. What's that

25 relevant to the facts and issues in this case?

 39

1 MR. LAVEY: Every time that we take a

2 deposition, we learn of new Brady violations.

3 Paula Belmonte said she told Colleen Dunne

4 seven times in front of Pitcher "It's not Tyrone

5 Tucker."

6 Guess what? They're obligated to tell us

7 that. Whether they believe it's true or it's not

8 true or what. It doesn't matter. They are

9 obligated to tell us. Not hide it. Not sweep it

10 under the rug and then deny it. That's what we're

11 talking about.

12 These are Brady violations, clear, simple.

13 There's no defense to it. None.

14 So that's why we're entitled to it. You have

15 a prosecutor who has never once respected the rules

16 of this court, never once respected the rules of

17 this jurisdiction.

18 THE COURT: How can you stand up there and

19 make that sort of argument? You under- --

20 MR. LAVEY: Because I'm intimately familiar

21 with Colleen Dunne. Every case I've ever seen her

22 involved in down here, Judge, she has committed an

23 ethics violation, hid evidence, and lied to the

24 Court. Every single one of them.

25 THE COURT: You undermine your argument when

 40

1 you sit there and "never once has she respected a

2 rule of the Court."

3 I mean, come on. Maybe there's instances that

4 you're familiar with, but just to make those sorts

5 of arguments, I'm frankly surprised that those

6 sorts of arguments you think are going to carry the

7 day.

8 It's an extreme overstatement. You know --

9 MR. LAVEY: I apologize, Judge. I never

10 anticipated I could ever be standing -- in 22 years

11 of practice, five of them as a prosecutor -- I

12 never ever thought I would be standing at any

13 podium ever talking about at least three verified

14 instances that a prosecutor has lied to the Court,

15 hid evidence in major cases, where people -- one

16 client -- my client is sentenced to life in prison

17 on that case, that she hid evidence and lied to the

18 Court. Now, where is the integrity of the

19 judiciary system there? Where is it?

20 THE COURT: Attacking the entire integrity of

21 the Sixteenth Circuit, those arguments are just

22 really beyond the pale. It's one thing to pinpoint

23 particular problems. There's obviously been

24 misconduct, and I get that. But to stand up here

25 and make such sort of just outrageous claims, it's

 41

1 not really very persuasive.

2 MR. LAVEY: Well, Judge, they're not so

3 outrageous when you have a person who's running for

4 the State Attorney spot who is proposing to set up

5 a special committee, a special committee to review

6 every case that Colleen Dunne handled.

7 THE COURT: Again, as you point out, what does

8 the political positions have to do with really the

9 relevant issues in this motion?

10 MR. LAVEY: It's somebody that, Judge --

11 Colleen Dunne is somebody who is a proven liar,

12 somebody who's proven to have hid evidence. And

13 guess what? She's done it in this case too. She's

14 lied to this Court in this case. She's -- who

15 knows what she's done with evidence in this case?

16 Who knows? That's why we want to talk to her about

17 it. Who knows what she presented to the grand

18 jury?

19 And, in light of Paula Belmonte's deposition

20 testimony -- I'm sorry -- trial testimony for that

21 purpose, she said that when she told Colleen Dunne

22 that it wasn't Tyrone Tucker, she said that Colleen

23 Dunne said -- her response was something along the

24 lines that "she's just a piece of shit drug

25 addict." That was Colleen Dunne's response, that

 42

1 she was familiar with Ms. Belmonte and had

2 prosecuted her in the past and she was a piece of

3 shit drug addict, and she discredited her claims

4 that it wasn't Tyrone Tucker.

5 Now, did Colleen Dunne say that to the grand

6 jury? Did your Honor ever read those transcripts

7 in camera? Did your Honor ever order the

8 transcripts to the hearing, the grand jury

9 indictment hearing, to see for yourself what was

10 actually said, or is your Honor just blindly ruling

11 on the motions?

12 THE COURT: Are you finished?

13 MR. LAVEY: Yes, Judge.

14 THE COURT: Okay. Thank you.

15 Did Ms. Gomez-Mallada have some argument on

16 this?

17 I assume you're joining in the motion. Did

18 you have some argument?

19 MS. GOMEZ-MALLADA: I do join in the motion,

20 your Honor. I don't think I have anything further

21 to contribute to the area. I think we've listened,

22 we've heard.

23 THE COURT: All right. And I assume

24 Mr. Ballarotto is just monitoring the hearing;

25 you'll let Ms. Higgins do the arguing today for the

 43

1 team?

2 MR. BALLAROTTO: Yes, your Honor. I am most

3 happy to have Ms. Higgins argue on our client's

4 behalf.

5 Thank you.

6 THE COURT: All right. Thank you.

7 State.

8 MS. POIST: Your Honor, this request has

9 already been denied by the Court at a hearing on

10 November 4, 2019. It was the same day as the

11 motion to disqualify Colleen Dunne.

12 THE COURT: Could you speak up a little bit,

13 please?

14 MS. POIST: Yes, your Honor.

15 This request has already been denied on

16 November 4, 2019, which is the same date that the

17 motion to disqualify Colleen Dunne was heard.

18 There was argument from then counsel for Johnson,

19 Public Defender Mr. McCarthy; counsel for Wilson,

20 Ms. Gomez-Mallada, who remains as counsel. And

21 ultimately they indicated that there is no

22 agreement in place between the co-defendants or the

23 State for their cooperation in the case.

24 The Court ruled that listing the witnesses

25 would invade both attorney-client and work-product

 44

1 privileges and granted the motion to strike as to

2 those two witnesses, defense counsel, and as to

3 Colleen Dunne.

4 The circumstances have not substantially

5 changed. Ms. Dunne is no longer employed by our

6 office. She has accepted responsibility for her

7 actions in a completely distinct separate case

8 happening, I believe, seven years ago.

9 There remains no agreement in place between

10 any of the defendants and the State for cooperation

11 in this case.

12 Everything that the defense is alleging is all

13 actions that occurred prior to November 4th, when

14 the Court made its previous decision. And the fact

15 that Colleen Dunne is no longer employed by our

16 office does not change the analysis. The intended

17 query is into Ms. Dunne's acts as a prosecutor

18 while she was employed by the State Attorney's

19 Office. The reason she is no longer employed by

20 our office is irrelevant.

21 This motion is not filed in good faith.

22 They're accusing her, they're accusing us of

23 misconduct.

24 You can see that the loop-around and the

25 argument here is that they want her deposition but,

 45

1 if not, they want the grand jury transcripts. The

2 two are completely unrelated. This is yet another

3 attack by the defense to obtain something the Court

4 has previously denied and most recently denied

5 again on October 13th of this year.

6 The grand jury transcripts were denied because

7 the defense has not shown the existence of a

8 particularized need and the Court wasn't going to

9 authorize a fishing expedition to see what may have

10 been presented to the grand jury. The Court

11 rejected counsel's arguments that the transcripts

12 were needed to further justice, finding it was

13 based on mere speculation.

14 Similar to the motion for grand jury

15 transcripts, the defense has filed a motion based

16 on speculation here in this case.

17 State v. Donaldson, 763 So.2d 1252, a 2000

18 case out of the Third District Court of Appeal,

19 holds that in the rare case in which the defense

20 believes it has a basis for taking the prosecutor's

21 deposition, the defense must first exhaust less

22 intrusive discovery methods and then must make a

23 showing of necessity and materiality and that the

24 interest of justice require this extraordinary

25 step.
 46

1 The defense has not exhausted less intrusive

2 discovery methods. The deposition of former

3 Captain Penny Phelps, who supposedly Ms. Dunne is

4 in cahoots with, hasn't been taken, and the lead

5 detective, Matthew Pitcher, also has not been taken

6 in this case.

7 The defense has also not shown necessity.

8 Tucker's motion starts out by stating that the

9 defendant previously placed former ASA Colleen

10 Dunne on his witness list because preliminary

11 investigation in discovery revealed she had an

12 active role in interviewing and possibly

13 incentivising co-defendants Wilson and Johnson, as

14 well as cooperator Naheem Jackson. Emphasis on

15 "possibly." Possibly is not enough.

16 Now, Johnson's motion eliminates the word

17 "possibly" and changes to order of the defendants.

18 But while he's claiming that his client was

19 incentivised, there is no support for it.

20 And I would note that the interview --

21 THE COURT: I'm sorry, you said what? While

22 he's claiming what?

23 MS. POIST: That his client was incentivised.

24 So he took out the "possibly" incentivised and said

25 "was" incentivised. No support is presented.

 47

1 And the interviews with the defendant are all

2 tape recorded and they have been provided to the

3 defense.

4 The motions claim that Colleen Dunne blatantly

5 lied to the Court about Jackson. They still

6 maintain that Jackson was working as a CI for the

7 sheriff's office on this particular case without

8 providing any proof. The existence of a CI file

9 for Jackson, which this Court reviewed in camera

10 and has been provided to parties, does not mean

11 that he was working in that capacity at the time

12 Tucker and Wilson made statements to him while he

13 was incarcerated.

14 The fact that Jackson was also facing criminal

15 charges at the time can be addressed during cross-

16 examination should he testify.

17 The motions claim that they suspect interviews

18 between Colleen Dunne and Jackson must exist

19 because she was intimately involved in the case.

20 Again, mere suspicion is not enough.

21 Counsel argues that it's crucial to their

22 defense to depose Colleen Dunne as to what was told

23 to Jackson despite their being no evidence that

24 Colleen Dunne ever met with him. All the video

25 recordings of the meetings between law enforcement

 48

1 and Jackson have been turned over to the defense.

2 Just as when they argued the motion for grand jury

3 transcripts, this is speculative.

4 Again, they talk about what was told to

5 Johnson and Wilson. And, again, all video

6 recordings of those meetings between law

7 enforcement, Colleen Dunne, the defendant and their

8 attorneys have been turned over to the defense.

9 In the case of Wilson, his attorney, Ana

10 Gomez-Mallada, was present with him on both

11 occasions.

12 Again, this is speculative.

13 The motions want to know why Colleen Dunne

14 supposedly lied to the Court about the whereabouts

15 of Anathea Clay and Belinda Corrales. And this is

16 a very transient community and sometimes people

17 can't be located and sometimes they are. Witnesses

18 often come in and out of the folds. But the issue

19 is that these individuals are now readily available

20 and have both been deposed. It has no bearing to

21 the future of the case. It seems as if the

22 defense's motivation is unrelated to the defense of

23 the case but more focused on personal action

24 against Ms. Dunne, with unsupported allegations

25 being made over and over again.

 49

1 In his motion, Johnson's attorney specifically

2 mentions that he and Ms. Higgins were involved in

3 the case in which Ms. Dunne received disciplinary

4 action. They have a footnote indicating that she

5 is undeserving of presumption of innocence nor

6 integrity. You've heard their statements here

7 today. This is obviously a very personal thing for

8 both of them. And Mr. Tucker on Facebook has made

9 it publicly known that he plans on filing a Bar

10 complaint against Colleen Dunne.

11 The Court should not grant the deposition of

12 Colleen Dunne in order to facilitate these motives,

13 as they're unrelated to the charges set to be

14 decided by a jury when these cases ultimately go to

15 trial.

16 Throughout this case defense counsel has used

17 every motion, which upon filing become public

18 record, as an opportunity not only to attack

19 Colleen Dunne but also the State Attorney's Office

20 as a whole. These unprofessional disparaging

21 remarks are unnecessary for them to zealously

22 advocate for their clients.

23 And defense counsel for Tucker doubled down in

24 the reply memorandum to our response. In our

25 response to our assertion that the doctrine of

 50

1 judicial immunity embraces those who exercise a

2 judicial and quasi-judicial function and that state

3 attorneys are, in fact, quasi-judicial officers,

4 the defense wrote, "The State's suggestion that a

5 former prosecutor is immune from civil and/or

6 criminal penalties for offenses committed on the

7 job is not only ridiculous but speaks volumes about

8 the lengths the State will go to conceal

9 prosecutorial misconduct."

10 And although we're asking the Court to make

11 its decision on applicable law, the defense

12 suggests that should the Court rule in our favor,

13 the Court would be furthering supporting the cover

14 up. And the State wants the Court to assist in

15 shielding a former employee who they know committed

16 prosecutorial conduct in another matter to protect

17 the Monroe County Sheriff's Office.

18 "Unfortunately in this case the State has tied

19 the defense's hand. At every turn they attempt to

20 thwart the discovery process to protect itself to

21 the detriment of the defendant and the truth."

22 And they also wrote, "The State doesn't just

23 want to conceal Colleen Dunne's conduct before the

24 grand jury. The Court wants the State to help

25 conceal all of her conduct in this case."

 51

1 The State hopes the Court will assist in

2 hiding all of this.

3 And lastly "One must ask why there is such an

4 effort by the State to conceal the conduct of

5 Colleen Dunne. This Court should not be an

6 unwitting party to this cover up."

7 So the speculation is continuing. And then it

8 starts another motive, and I think it came out here

9 today. They wrote, "In this case Colleen Dunne

10 lied to this Court multiple times on multiple

11 occasions and fostered untruthful sworn testimony

12 from numerous officers. In fact, it is very

13 likely" -- again, words, suggesting -- "that her

14 conduct constituted participation in a criminal

15 conspiracy with one or more police officers to

16 violate Mr. Tucker's constitutional rights."

17 They're looking at this from a different

18 perspective than actually what the evidence is in

19 the case. They're going after Ms. Dunne. This is

20 a witch hunt. It's as if they are seeking to have

21 her disbarred or criminally charged. The defense

22 wants you to grant her deposition, when discovery

23 hasn't been exhausted and they haven't shown

24 necessity or materiality, both of which are

25 required and that isn't for these ulterior

 52

1 purposes.

2 None of the motions contain any affidavits.

3 They did reference some transcripts today. They're

4 not saying when and where such actions took place.

5 So I would note that just to respond -- and I

6 didn't bring the transcript of Paula Belmonte with

7 me because it wasn't mentioned in their motion, and

8 I'm not even sure if it had been done by the time

9 they had filed this motion. But basically Paula

10 Belmonte said that she only saw the second person,

11 who was not the person that attacked her, two and a

12 half times, and that it was while the person she

13 testified as Rory Wilson was on top of her

14 attacking her, and that the person was smaller than

15 Rory Wilson.

16 That's essentially the only descriptor that

17 she could get. That she didn't see their face.

18 She only saw the back of them. She could not

19 provide any specifics.

20 She said that she heard someone make a

21 statement, but she could not see the person that

22 made the statement, and that it could have been the

23 second person or it could have been a third person

24 who was present, but that that voice was not Tyrone

25 Tucker.
 53

1 So the State realizes that she has testified

2 to such, but the State believes that there is other

3 evidence in this case.

4 Now, the fact we're opposing the motion has to

5 do with holding them to their burden. Yes. You

6 know, the determination is whether or not they have

7 done what they need to do in order to depose

8 Colleen Dunne. And that is not to say at some

9 point they may not be able to do that, but today

10 they have not.

11 As we said in Donaldson, in a case we cite in

12 our motion, it's an extraordinary step that will

13 rarely be justified deposing opposing counsel. And

14 I think that that's whether they're actively

15 involved in the case or were involved in the case

16 at some other point in time.

17 Again, this is based on action she took while

18 she was employed at our office and was the

19 prosecutor on this case. The fact that she is not

20 presently opposing counsel does not change the

21 analysis.

22 Would the defense suggest that the State could

23 depose prior counsel who had represented them if we

24 thought that it would benefit the State's case?

25 The defense has been provided all the copies

 54

1 of the interviews and other discovery. There are

2 several depositions outstanding. Like I said,

3 Captain Phelps and Detective Matt Pitcher are

4 amongst them. And since the defense alleges that

5 Colleen Dunne and Captain Phelps conducted nearly

6 every aspect of the investigation, it seems that

7 that alone, notwithstanding anything else, is a

8 requirement before they can move on to materiality.

9 Moreover, they have not established what vital

10 information she purportedly possesses or that

11 cannot be found by other means. They're asking to

12 depose Colleen, in the alternative produce the

13 grand jury transcripts. We are opposed to both.

14 We respectfully request that the Court deny

15 the defendants' motion.

16 Thank you.

17 THE COURT: Well, let's hold on a second here.

18 I've heard from the lawyers who are arguing in

19 favor of the motion that there's been all sorts of

20 Brady violations.

21 Are you aware of any of these from your

22 standpoint?

23 MS. POIST: I know that they said that Paula

24 Belmonte told Colleen Dunne that this confession,

25 as they call it -- I don't know that I would

 55

1 characterize it as that -- was on a wall. I

2 understand that Paula Belmonte also said that she

3 told Detective Pitcher about it. As I said,

4 Detective Pitcher has not been deposed, so it has

5 not been inquired of him why he did not collect

6 that. But defense counsel sent a private

7 investigator. They have obtained that. They have

8 the information.

9 So I can't speak as to that, but, again, they

10 are in possession of it. So I think the proper

11 remedy, if they wanted to do something, would be a

12 Richardson hearing but not a deposition of

13 Ms. Dunne. Certainly doesn't seem appropriate in

14 the case.

15 THE COURT: Well, you've been assigned the

16 case subsequent, or at least one of the attorneys

17 on the case subsequent to Ms. Dunne's removal. I'm

18 sure you have familiarized yourself with the file.

19 Probably "familiarized" is probably -- you've

20 probably done more than that. You've probably gone

21 through it with a fine-tooth comb, I would imagine.

22 Have you had some alleged Brady violations

23 brought to your attention? Have you endeavored to

24 fill in any gaps or resolve any discovery issues

25 that have been brought to your attention by

 56

1 opposing counsel?

2 MS. POIST: I came across the file that was

3 the subject of the earlier motion to seal. I don't

4 want to mention specifically what it is because

5 that's why we wanted to seal it was to protect the

6 nature of those documents. They were in the file.

7 I found that they had not been turned over. I

8 don't know that they have any relevance to the

9 case, but I, out of abundance, did turn them over.

10 So I don't think that I would consider that a Brady

11 violation.

12 But there are things that I found that maybe

13 were inadvertently not turned over before. But I

14 haven't seen anything glaring, no.

15 THE COURT: And the defense says there's no

16 statute, there's no law against what they're

17 seeking to do.

18 So I guess your response is this Donaldson

19 case?

20 MS. POIST: Correct.

21 THE COURT: Have you found any other legal

22 authority?

23 MS. POIST: No, your Honor, but I feel like

24 that is very on point. It's about -- of course, it

25 is a current prosecutor on a case. But, again, I

 57

1 just think that no longer being employed, whether

2 you transferred divisions, transferred offices,

3 whether you retired, that that doesn't change the

4 inquiry or the information you knew at the time and

5 what it's seeking to go into. So I feel that

6 Donaldson is on point and needs to be followed in

7 this case.

8 Like I said, the State's not saying that in no

9 realm could the deposition occur. The State could

10 not say that in good faith. What we're saying is

11 that it hasn't been met now, the requirements, in

12 order for them to be able to do so. And they may

13 never be able to do so. But that's not to say that

14 Colleen Dunne is somehow prohibited, off limits,

15 and could never be called as a witness. They just

16 haven't done what they need to do and they may

17 never be able to do that.

18 We're asking the Court to deny the motion.

19 THE COURT: Okay. Well, thank you.

20 Was there any brief rebuttal from Ms. Higgins,

21 to begin with?

22 MS. HIGGINS: Yes. Your Honor. Briefly.

23 THE COURT: You filed a reply; is that what I

24 understand?

25 MS. HIGGINS: Yes, your Honor. We filed a

 58

1 reply. Our reply was filed before the deposition

2 of Paula Belmonte. That's why it was not

3 referenced in the reply. We did file a reply.

4 And what we pointed out in the reply is that

5 the State never once addresses the statute and the

6 rules of evidence that would clearly permit Colleen

7 Dunne to testify.

8 What we also discuss in our reply is that the

9 cases that they rely on have only to do with

10 current sitting opposing counsel, officers of the

11 court, current opposing counsel, current

12 prosecutor. Not someone that has been suspended

13 from the practice of law, will not participate in

14 trial preparation or trial strategy, has no contact

15 with the State Attorney's Office because that

16 person has been suspended by the Bar for hiding

17 evidence and lying.

18 I don't understand why the State wants to

19 gloss over that. That is a huge and very important

20 part of the Court's consideration here. This is

21 not someone who transferred offices. It is not

22 irrelevant why she no longer has the job. This is

23 an admitted liar who lied in this jurisdiction and

24 did damage in this jurisdiction. You can't gloss

25 over that.
 59

1 Frankly, the State should be seeking the

2 truth. The State should not be seeking the

3 protection of someone who can't even practice law

4 anymore because she can't follow the rules.

5 Now, your Honor, what we pointed out in our

6 reply is that the cases that the State relied on,

7 Shelton and Zimmerman, the State relies on those

8 cases while still objecting to the grand jury

9 transcripts being released in this case.

10 Those cases state that the defense does have

11 other discovery options available before you call

12 current sitting opposing counsel, before you make

13 that attorney a witness. And then the State has to

14 go through the whole rigmarole to get somebody else

15 on the case. Before you do that, get everything

16 else. And one of the things that they specifically

17 state is grand jury transcripts.

18 Now, we asked for the grand jury transcripts.

19 The State objected and the Court granted

20 their -- and the Court sided with them. Then we

21 filed the motion for reconsideration based on other

22 new evidence.

23 Your Honor, Mr. LaVey was absolutely correct

24 in that every deposition we take in this case, we

25 turn over one rock to find 50 more snakes in this

 60

1 case. It's impossible for us to even keep up with

2 the violations and the misconduct that we are --

3 that these officers testify about, these

4 inconsistent statements, and facts that lay

5 witnesses testify to.

6 Your Honor, we asked for those grand jury

7 transcripts. We're still asking for those grand

8 jury transcripts because at the very least we

9 should finally be able to ascertain what Colleen

10 Dunne told that grand jury to indict Franklin

11 Tucker. When she put that witness on the stand,

12 was it Matthew Pitcher, who the victim had

13 repeatedly told by that point "not Franklin

14 Tucker"? Did she lie? Did she hide evidence? Did

15 she lie like she lied to this Court about Naheem

16 Jackson, about Belinda Corrales, about Anathea

17 Clay? What did she tell the grand jury?

18 Maybe, if we had the grand jury transcripts,

19 maybe we wouldn't need to depose Colleen Dunne, or

20 maybe it would be this smoking gun that the State

21 feels like we have to produce in order to get

22 there.

23 Your Honor, I submit what more do we need to

24 get there? We have --

25 THE COURT: Tell me what you think relevant

 61

1 evidence that Ms. Dunne can provide.

2 I have to say, it does seem very personal and

3 it does seem about going after Ms. Dunne as opposed

4 to trying to find evidence that may be admissible.

5 That's what you have to do is explain what it is

6 that you think you're going to unearth that might

7 be relevant to this case.

8 MS. HIGGINS: And I suggest it should be

9 personal to this Court too because, when an

10 attorney comes in here and lies and puts an officer

11 on the stand when she knows that he's lying, it

12 should be personal to this Court too. It's a

13 miscarriage of justice.

14 THE COURT: Thankfully -- thankfully,

15 Ms. Higgins, that's no part of a judge's role is to

16 take things personally. You're right

17 systematically, but I won't be sitting up here and

18 making angry arguments like you are.

19 MS. HIGGINS: Well, I am angry, your Honor.

20 I'm angry because of this. I'm angry because

21 Matthew Pitcher recently testified in an internal

22 affairs interview, which was mentioned in our

23 reply -- no comment from the State -- that the only

24 reason he arrested Franklin Tyrone Tucker was due

25 to a lengthy phone conversation between Penny

 62

1 Phelps and Colleen Dunne.

2 As Mr. LaVey said, every witness we talk to,

3 Colleen Dunne was involved in every aspect of this

4 investigation.

5 We have asked what brought this case to the

6 grand jury. What evidence did she have at that

7 point? And we've been denied the grand jury

8 transcripts.

9 And, your Honor --

10 THE COURT: I just don't understand --

11 MS. HIGGINS: -- my client spent 700 days in

12 jail. And there was an officer, Detective Pitcher,

13 that lied to you on the stand, that lied to us, and

14 that resulted in my client continuing to be

15 incarcerated for what we will prove -- we shouldn't

16 have to prove it. The burden is not on us. The

17 burden is on the State. But yet we are constantly

18 coming to this Court asking just for the ability to

19 get the information. All we want is to see what

20 she presented to the grand jury. All we want is to

21 ask her questions about why did you lie about

22 Anathea Clay. Why did you lie about Belinda

23 Coralis?

24 A transient population. She was in the jail

25 the entire time. She was in the county in the

 63

1 jail.

2 Your Honor, there are so many facts that we

3 have brought to this Court's attention. We want to

4 know why Anathea Clay wasn't investigated. You

5 yourself, your Honor, asked at the Arthur hearing,

6 you said, "What about this Anathea Clay I keep

7 hearing about?"

8 That's when you were fed the lies about how

9 they couldn't find her and they exhausted all of

10 the resources at the sheriff's department. They

11 couldn't find her. We want to know why. Maybe

12 there is a valid reason. Maybe Ms. Dunne can shed

13 some light on it. But why did she lie about it?

14 Why didn't she tell us about the statement that was

15 on the wall? Why did she allow Detective Pitcher

16 to testify about Naheem Jackson? Did she know that

17 he was a confidential informant at the time? Maybe

18 she didn't. And you know what? She can come in

19 and talk to us about it and tell us what she knew

20 and what she didn't know. But right now there are

21 a lot of pieces, a lot of moving parts, and we have

22 the right to talk to people that have information

23 about this case, information about the facts.

24 She was present when the search warrant was

25 executed. She was present on the night of the

 64

1 inspection. She was present in all these

2 interviews.

3 And you know what, your Honor? All the

4 interviews haven't been turned over. In the

5 transcript we provided today, Ms. Belmonte said she

6 had a meeting with Colleen Dunne in that

7 transcript, and she thinks it was off the record.

8 So how would we ever know what she told Colleen

9 Dunne if it's not recorded and the State is not

10 providing this information?

11 And, your Honor, it's a problem. It's a

12 problem in this case.

13 Paula Belmonte testified that she talked to

14 Christine Poist a few times. To this day we

15 haven't received any notes, any information that

16 she said it wasn't Franklin Tyrone Tucker when she

17 talked to Ms. Poist. That is a Brady violation.

18 We need to know what these witnesses told

19 Colleen Dunne at the State Attorney's Office. We

20 need to know how she was involved, what she saw

21 when she was there executing a search warrant and

22 she's in the house, what she saw when she talked to

23 certain witnesses, when she would talk to Detective

24 Pitcher, when she talked to Captain Phelps.

25 And, your Honor, a lot of this is not work

 65

1 product. It's not. It's not trial preparation.

2 We want to know about the actions that she took.

3 For example, why did she tell the sheriff's

4 department that you, your Honor -- in writing, why

5 did she tell the sheriff's department that you said

6 that my client couldn't get married. That's her

7 action. That's not work product. She is involved

8 in this and we want to know what she knows, and

9 there's absolutely no legal authority to stop

10 her -- to stop us from calling her. The only thing

11 that's preventing us is the Court's prior order

12 and, your Honor, the facts and circumstances have

13 radically changed since November of 2019.

14 When we listed Colleen Dunne, she was still at

15 the State Attorney's Office. She was still

16 opposing counsel. Now she's suspended. She has

17 admitted she lied, all of that, as well as all of

18 the things that we have uncovered in this case. I

19 don't know what more we could possibly bring to the

20 Court's attention to convince the Court that there

21 is absolutely a necessity, that we have shown a

22 particularized need. There are all of these

23 inconsistencies. There are all of these problems.

24 THE COURT: You're going to have to wrap it up

25 here.
 66

1 MS. HIGGINS: How can they possibly say that

2 this is not enough. Her conduct in this case

3 should absolutely be raising a red flag. The State

4 should be looking into it if they're seeking the

5 truth in this case, and this Court should be

6 concerned enough that we are at least entitled to

7 the grand jury transcripts in this case and to list

8 Colleen Dunne to come in and testify under oath.

9 Thank you, your Honor.

10 THE COURT: Thank you.

11 Anything further from Mr. LaVey, very briefly?

12 MR. LAVEY: Your Honor, I'll just -- I'll

13 adopt the argument made by co-counsel, as I'm in

14 complete agreement. I think the Court has heard

15 enough to make its ruling at this point. I think

16 that we provided your Honor with more than enough

17 to grant our motion.

18 So thank you, Judge.

19 THE COURT: Thank you.

20 And presumably, Ms. Gomez-Mallada, you don't

21 have any further argument?

22 MS. GOMEZ-MALLADA: I do not, your Honor.

23 Thank you.

24 THE COURT: All right. Is there any very

25 brief surrebuttal from the State?

 67

1 MS. POIST: Your Honor, I would just state

2 that Eagan v. DeManio talks about the disclosure of

3 grand jury minutes, not transcripts.

4 I would just note that here counsel has

5 essentially accused me of committing a Brady

6 violation and they said that Ms. Belmonte the whole

7 time has indicated he was not involved. They have

8 been in constant communication with her.

9 Ms. Higgins put on the record that she wanted to

10 depose Ms. Belmonte and that she was not opposed to

11 the deposition to perpetuate because she was going

12 to testify favorably for her and would say that her

13 client was not involved. So I don't want to not

14 put on the record that I object to that

15 characterization. She's been in contact with her.

16 She knows what it is that she said.

17 And, again, that the Court should deny the

18 motion.

19 THE COURT: Okay. Well, I'm going to have to

20 take this under advisement. We've heard a lot of

21 vigorous arguments this afternoon and have, you

22 know, substantial motions, and reply, and case. So

23 I think the wise thing for me to do is to

24 deliberate upon this, review these materials, and

25 make a decision thereafter.

 68

1 What I would like to do briefly is talk about

2 the 27th. So I'm just curious if that's a go,

3 first of all. I did see Mr. LaVey's motion here

4 and his request to appear telephonically for that

5 and presumably you saw the order that said it's

6 okay as long as you're not going to be presenting

7 evidence or examining witnesses.

8 MR. LAVEY: Yes, Judge. No problem.

9 THE COURT: And, Ms. Gomez-Mallada, you are

10 going to be down here?

11 MS. GOMEZ-MALLADA: I will be there

12 personally. I have spoken with the witness. And

13 it should not take terribly long. But I will be

14 there personally to take testimony of the witness.

15 THE COURT: Okay. And the witness is going to

16 be Judge Koenig; is that who the witness is going

17 to be?

18 MS. GOMEZ-MALLADA: Yes. That's correct, your

19 Honor.

20 THE COURT: Okay.

21 MS. GOMEZ-MALLADA: I think he said he had

22 something, but he would make himself available at

23 the right time.

24 THE COURT: All right. Fine. So that's

25 apparently on track.
 69

1 So we'll get the order about the investigative

2 costs, the depositions of other than Ms. Belmonte

3 that -- and you know how to get that, with that

4 link.

5 So thank you all. I'm going to adjourn the

6 hearing. I'm just going to step down and we'll

7 have to shift gears while we get people switched

8 out for the 3:30.

9 So I'm going to need to be sure we have the

10 file and all the materials. So I'm going to hang

11 up.

12 Thank you so much.

13 (Proceedings concluded at 3:30 p.m.)

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1 COURT REPORTER'S CERTIFICATE

3 STATE OF FLORIDA )

4 COUNTY OF MONROE )

6 I, Cathy H. Webster, Registered Professional

7 Reporter, certify that I was authorized to and did

8 stenographically report the foregoing proceedings

9 and that the transcript is a true and complete

10 record of my stenographic notes.

11 I FURTHER CERTIFY that I am not a relative,

12 employee, or attorney, or counsel of any of the

13 parties, nor am I a relative or employee of any of

14 the parties' attorney or counsel connected with the

15 action, nor am I financially interested in the

16 action.

17 DATED this 28th day of October 2020.

18

19

20

21 __________________________
Cathy Webster, FPR, RPR
22 Official Court Reporter
Sixteenth Judicial Circuit
23 Freeman Justice Center
302 Fleming Street
24 Key West, Florida 33040

25