FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-1875
_____________________________
KATHERINE MAGBANUA,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
May 31, 2019
ROWE, J.
Katherine Magbanua is being tried for the murder of Daniel
Markel. Magbanua seeks a writ of certiorari to quash an order
prohibiting her from deposing Wendi J. Adelson, Markel’s ex-wife
and a material witness. Magbanua contends that the order
departs from the essential requirements of the law because
Adelson did not provide good cause to prohibit her deposition. She
asserts that Adelson’s blanket invocation of her Fifth Amendment
privilege and claim that requiring her to appear for a deposition
would embarrass, harass, or inconvenience her did not support
issuance of a protective order. Magbanua argues that her inability
to depose Adelson significantly impairs her ability to prepare a
proper defense. Because Magbanua has not demonstrated
material injury that cannot be corrected on direct appeal, we are
constrained to dismiss the petition for lack of jurisdiction.
Background
In 2013, Markel and Adelson were engaged in a contentious
legal battle over the custody of their two minor children. Adelson
wanted to relocate with the children to South Florida, where her
family lived. But she moved the children from their home in
Tallahassee without court authorization. Markel obtained a court
order requiring that the children return to Tallahassee and
preventing their relocation. This outcome upset Adelson and her
family.
A year later, on July 18, 2014, Markel was sitting in his garage
in his parked car when he was shot in the head. Later that same
day, Adelson was interviewed for over eight hours by police.
Adelson indicated during the recorded interview that someone
could have committed the murder thinking they were helping her.
She also divulged that her brother, Charlie Adelson, joked about
hiring a hit man to kill Markel.
Over the next two years, investigators developed information
that Magbanua, Charlie Adelson’s former girlfriend, conspired
with others to procure the murder of Markel. Magbanua is alleged
to have enlisted Sigfredo Garcia (the father of Magbanua’s
children), and Luis Rivera (Garcia’s friend) to travel from Miami
to Tallahassee to kill Markel. During the investigation, police
obtained rental car receipts, GPS records showing the movements
of the rental car, video surveillance, and cell phone records
appearing to place Rivera and Garcia at the crime scene at the time
of the murder.
Investigators also intercepted communications before and
after the murder between Magbanua and Charlie Adelson and
between Charlie Adelson and Adelson’s mother (Donna Adelson).
Investigators learned that after the murder, Magbanua received
$13,000 in payments from entities connected to the Adelsons.
Magbanua also received over $56,000 in cash payments from
unknown sources that investigators believe were made in
connection with Magbanua’s role in procuring the murder.
Magbanua, Rivera, and Garcia were charged in Markel’s murder.
Rivera pleaded guilty to second-degree murder and agreed to
2
cooperate with the State. Magbanua and Garcia are awaiting trial.
No member of the Adelson family has been charged.
Wendi Adelson, however, has been identified as a material
witness for the State in Magbanua’s trial. She is listed as a
Category A witness 1 and the State identified numerous items
connected with Adelson, including an iPad, photos of her vehicle,
cell phone records, credit card records, banking records, her
recorded police interview, and her signed consent to search form.
Six weeks before trial, Magbanua served Adelson with a subpoena
to appear for a discovery deposition.
Adelson moved for a protective order four weeks before the
scheduled trial date, stating that she intended to assert her Fifth
Amendment privilege in response “to any substantive questions”
asked during the deposition. Adelson admitted that she would
testify at trial if subpoenaed by the State because she would be
granted immunity for her testimony. She argued that good cause
existed for issuing the protective order because requiring her to
appear at a deposition would unnecessarily “inconvenience,
embarrass, and harass” her.
Magbanua opposed the motion for protective order and moved
to compel Adelson’s appearance at the deposition or, in the
alternative, to exclude Adelson’s testimony at trial. Magbanua
argued that Adelson did not show good cause to prevent the
deposition. As a material witness for the State, Adelson could not
assert a blanket Fifth Amendment privilege and avoid being
deposed. Instead, Magbanua argued that Adelson should be
compelled to appear and could then invoke her privilege on a
question-by-question basis.
1 Category A witnesses include eyewitnesses, alibi witnesses,
witnesses who were present when a statement was made by a
defendant or codefendant, and informant witnesses who offer
testimony concerning statements of the defendant about issues for
which the defendant is being tried. Fla. R. Crim. P.
3.220(b)(1)(A)(i) (identifying eight types of Category A witnesses).
3
The trial court granted the protective order, ruling only that
requiring Adelson to assert her privilege as to individual questions
would “serve no useful purpose.” The order did not limit the scope
of the deposition, but rather prohibited the deposition altogether.
Adelson’s claims of inconvenience, embarrassment, or harassment
were not addressed. While the court denied Magbanua’s motion to
compel and motion to exclude Adelson’s trial testimony, it stated
the issue could be reconsidered at trial. Magbanua seeks certiorari
review of the orders.
Analysis
Certiorari is an extraordinary remedy that “should not be
used to circumvent the interlocutory appeal rule which authorizes
appeal from only a few types of non-final orders.” Jaye v. Royal
Saxon, Inc.,
720 So. 2d 214, 214-15 (Fla. 1998) (quoting Martin-
Johnson, Inc. v. Savage,
509 So. 2d 1097, 1098 (Fla. 1987)).
Appellate courts are limited in their ability to review non-final
orders by certiorari because “piecemeal review of nonfinal trial
court orders” impedes “the orderly administration of justice.” Id.
at 215. To obtain certiorari relief, Magbanua was required to show
that the trial court’s order departs from the essential requirements
of the law and that she has suffered a material injury that cannot
be corrected on direct appeal. Eutsay v. State,
103 So. 3d 181, 182
(Fla. 1st DCA 2012).
Magbanua argues that her inability to seek pretrial discovery
from Adelson significantly impairs her ability to prepare for trial
and the error in granting the protective order could not be
corrected on appeal. The purpose of the pretrial discovery rules is
to avoid trial by ambush. Scipio v. State,
928 So. 2d 1138, 1144
(Fla. 2006) (“Florida’s criminal discovery rules are designed to
prevent surprise by either the prosecution or the defense. Their
purpose is to facilitate a truthful fact-finding process.” (quoting
Kilpatrick v. State,
376 So. 2d 386, 388 (Fla. 1979))). Almost
certainly, the protective order barring the deposition of Adelson
deprives Magbanua of her right to question a material witness who
has indicated that she will testify on behalf of the prosecution. Any
questions that Magbanua may be able to pose to Adelson at trial
would be strictly limited to the scope of the direct examination by
the State. Patrick v. State,
104 So. 3d 1046, 1047 (Fla. 2012)
4
(holding that cross-examination of an adverse witness is limited to
matters related to credibility or germane to direct examination).
And as the State indicated at oral argument, it intends to narrowly
tailor its questioning of Adelson to the identification of evidence
and the establishment of the motive for the murder, including the
timeline of the divorce and custody proceedings. Thus, Magbanua
would be given little latitude in her cross-examination of Adelson
because her questions would be limited to the narrow categories of
information the State elicits at trial.
If Magbanua was permitted to take Adelson’s deposition, she
would not be restricted in the questions that could be posed. And
even though Adelson could invoke her Fifth Amendment privilege
in response to any questions, the very invocation of the privilege
by Adelson in response to specific questions may inform
Magbanua’s trial preparation. Depending on how Adelson testifies
at trial, the blanket prohibition against Magbanua’s obtaining
pretrial discovery may very well result in the material injury that
Florida Rule of Criminal Procedure 3.220 was designed to prevent.
State v. Kuntsman,
643 So. 2d 1172, 1174 (Fla. 3d DCA 1994). But
material injury is not enough to support the granting of certiorari
relief. Instead, Magbanua was required to demonstrate that any
injury she may suffer could not be corrected on appeal.
Magbanua asserts that her inability to depose Adelson results
in a material injury that cannot be corrected on appeal because a
reviewing court could not determine how Adelson would have
answered questions posed to her during the deposition. Nor could
the impact of her answers on Magbanua’s trial preparation be
measured. In support of her argument, Magbanua cites decisions
in civil cases where certiorari relief was granted after a party was
prevented from obtaining pretrial discovery. The holdings in those
cases find irreparable harm when a party is prohibited from taking
the deposition of a material witness because there is no practical
way to determine after judgment what the testimony of the
witness would have been or how it would have affected the result
of the trial. See Solonina v. Artglass Int’l, LLC,
256 So. 3d 971
(Fla. 3d DCA 2018); Bush v. Schiavo,
866 So. 2d 136 (Fla. 2d DCA
2004).
5
But Magbanua’s reliance on those decisions is misplaced. This
Court, on multiple occasions, has denied certiorari relief where a
criminal defendant sought review of an order barring pretrial
discovery, holding that any material injury could be remedied on
direct appeal. See Eutsay,
103 So. 3d at 183 (holding that the
State’s failure to timely disclose physical evidence was not
irreparable harm); McGahee v. State,
293 So. 2d 98 (Fla. 1st DCA
1974) (holding that the State’s apparent disregard of the discovery
rules was not irreparable harm); see also Segura v. State, 44 Fla.
L. Weekly D1210a (Fla. 1st DCA May 6, 2019) (holding that
exclusion of a third-party confession to several murders did not
constitute irreparable harm). Although an appeal which results in
a second trial may cause substantial delay and expense, and be
understandably frustrating for the accused, the families of the
victims, and witnesses, this Court has held “that the burden of
enduring a trial that may ultimately have to be repeated is not the
type of harm certiorari exists to prevent.” Eutsay,
103 So. 3d at
182. And as counsel for Magbanua conceded at oral argument, no
Florida court has granted certiorari relief to a criminal defendant
for a pretrial discovery violation by the State or following a pretrial
order denying the defendant the right to seek pretrial discovery
under the Rules of Criminal Procedure. Because Magbanua has
not demonstrated that any material injury she may suffer could
not be corrected on direct appeal, we are constrained to dismiss her
certiorari petition for lack of jurisdiction. Citizens Prop. Ins. Corp.
v. San Perdido Ass’n, Inc.,
104 So. 3d 344, 351 (Fla. 2012).
Conclusion
Although Magbanua persuasively argues that the protective
order preventing any pretrial questioning of Adelson significantly
impairs her ability to prepare a defense, any material injury to
Magbanua may be corrected on direct appeal. 2 See Callins v. State,
747 So. 2d 453, 453 (Fla. 4th DCA 1999) (observing that a
2 Of course, nothing prevents the trial court from
reconsidering its order. Fla. R. Crim. P. 3.192 (“Nothing in this rule
precludes the trial court from exercising its inherent authority to
reconsider a ruling while the court has jurisdiction of the case.”).
6
defendant always has a right of appeal from a conviction in which
he or she can attack any interlocutory order). Because we lack
jurisdiction, the petition for writ of certiorari is DISMISSED.
MAKAR, J., concurs with opinion; KELSEY, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring with opinion.
I agree with Judge Kelsey’s view that a departure from the
essential requirements of law has been established but concur with
Judge Rowe’s view that the level of irreparable harm has not. I add
three points.
First, just as a blanket judicial order compelling a witness to
answer all deposition questions violates the witness’s
constitutional rights against self-incrimination, Magid v. Winter,
654 So. 2d 1037, 1038-39 (Fla. 4th DCA 1995); J.R. Brooks & Son,
Inc. v. Donovan,
592 So. 2d 795, 796 (Fla. 3d DCA 1992), so too can
a judicial order denying a criminal defendant the opportunity to
ask any questions in deposition of a material witness who pre-
emptively says she’ll invoke her right against self-incrimination.
The former is solely a Fifth Amendment problem; the latter is both
a Fifth and Sixth Amendment one that requires a careful judicial
balancing of constitutional principles.
For example, when a defendant seeks to compel a co-
defendant’s trial testimony, the defendant’s rights to confrontation
and compulsory process run head-long into the co-defendant’s
right against self-incrimination. In Landeverde v. State,
769 So. 2d
457, 465 (Fla. 4th DCA 2000), the Fourth District held that the
“trial court did not err in refusing to compel the co-defendants to
testify at [defendant’s] trial” because Fifth Amendment principles
prevailed over Sixth Amendment principles in that case. The court
7
in Landeverde quoted approvingly from a Third District decision,
which stated that “when the Fifth Amendment guarantee collides
with the Sixth Amendment in circumstances such as these, the
Sixth Amendment right must yield because to require one to
incriminate himself in order to afford help to another would be
both unwise and unrealistic.” Walden v. State,
284 So. 2d 440, 441
(Fla. 3d DCA 1973) (emphasis added).
Here, a similar constitutional collision is in play, though the
context is a pretrial deposition to which criminal defendants are
entitled under Florida law. The norm for such depositions is for
trial judges to determine the rightfulness of a witness’s
“apprehensions of incrimination on a question-by-question basis”
rather than via blanket orders compelling or disallowing answers
to any questions. See, e.g., Magid,
654 So. 2d at 1039. Absent
unusual circumstances (not present here), this path is the one to
be followed. After all, a trial judge will eventually have to confront
the legitimacy of a claimed privilege against self-incrimination for
trial testimony as it is an issue of law and not one dependent upon
the assertions of parties or third parties. See, e.g., Belniak v.
McWilliams,
44 So. 3d 1282, 1284 (Fla. 2d DCA 2010) (“But it is
not the witness who determines whether the answers fall within
the privilege. Rather, ‘the determination of what answers may
incriminate or tend to incriminate cannot be left solely up to the
witness but is a matter which requires the exercise of the sound
discretion of the trial court under all the circumstances of the
case.’”) (citation omitted). The standard is that a “trial court may
properly require a witness to answer questions only if it is perfectly
clear that the witness is mistaken in his apprehensions and the
answers cannot possibly have a tendency to incriminate.” Magid,
654 So. 2d at 1039. Absent judicial parsing of a state witness’s
claimed self-incrimination privilege, a criminal defendant’s right
to depose and confront adverse witnesses is lost.
Second, the question of irreparable injury is a close one in this
case, as Judge Kelsey’s opinion makes evident. Magbanua says she
has no idea what Adelson may say at trial, but the State has
stipulated that it will only use Adelson’s trial testimony for very
limited purposes, such as the nature of her relationship with her
ex-husband. The scope and nature of Adelson’s trial testimony may
contextually form a basis for post-trial relief—or not—depending
8
on how the matter is handled. Presumably the State and Adelson
will have agreed upon the questions she will answer in advance of
her trial testimony, Magbanua will be apprised of them, and the
trial court will hear and resolve objections and issues raised,
minimizing or eliminating potential prejudice to Magbanua. Plus,
the trial judge has denied Magbanua’s motion to compel or exclude
Adelson’s testimony “without prejudice to reassert [the motion] at
[the] time the witnesses [sic] testimony is presented at trial,”
which means he envisions another opportunity to ameliorate
Magbanua’s Sixth Amendment concerns. (Emphasis added).
Magbanua essentially seeks information from Adelson beyond that
which the State has confirmed it will use at trial. It is not at all
clear that Magbanua has a right to compel disclosure of such
information; if Adelson were a co-defendant, she would not.
Landeverde,
769 So. 2d at 465. At best, she has a limited but
important right to ask questions to which Adelson may respond by
invoking her constitutional privilege, subject to the trial judge’s
review and approval/disapproval of the privilege.
Finally, the writ of certiorari is an infrequent species of
appellate proceedings for criminal defendants as applied to
discovery matters. See, e.g., Kidder v. State,
117 So. 3d 1166, 1169
(Fla. 2d DCA 2013) (denying relief where defendant sought non-
disclosure of blood alcohol test on Fifth Amendment grounds). The
reason, in large measure, is the principle that the writ of certiorari
“is not a substitute for an appeal.” State v. Smith,
951 So. 2d 954,
956-57 (Fla. 1st DCA 2007) (noting that “general principles
governing the use of certiorari apply in criminal cases as well as
civil cases”). Our judicial system has set the bar higher on criminal
discovery matters lest “every pretrial order in every criminal case
would be subject to review by certiorari.”
Id. at 958. For this
reason, the panel is constrained to according relief only where the
irreparable nature of the harm is established.
KELSEY, J., dissenting.
In this context, the law clearly requires that the Fifth
Amendment privilege be asserted as to specific questions, rather
than being asserted as a blanket refusal to testify as was the case
here. We should grant the petition and quash the protective order,
9
because these facts establish both a departure from the essential
requirements of law and irreparable harm.
Alternatively, we should dismiss the petition as premature.
See Charles v. State,
193 So. 3d 31, 32 (Fla. 3d DCA 2016)
(dismissing certiorari petition as premature where challenged
reports of non-testifying experts had not yet been completed or
reviewed in camera); Cape Canaveral Hosp., Inc. v. Leal,
917 So. 2d
336, 339-40 (Fla. 5th DCA 2005) (denying certiorari as premature
where order simply required documents be submitted to court for
in camera review); Travelers Indem. Co. v. Fields,
262 So. 2d 222,
223-24 (Fla. 1st DCA 1972) (denying certiorari as premature where
trial court had not yet examined disputed discovery documents in
camera and ruled on whether they should be produced). If we
granted the petition or dismissed it as premature, the trial court
could then follow precedent requiring Adelson to appear at
deposition and assert the privilege on a question-by-question basis,
with the court determining which unanswered questions she must
answer. Doing so would eliminate this issue as a potential new-trial
argument, potentially saving years of time and untold dollars in
public and private resources. Looking at the issue from the other
end of the process, the deprivation of pretrial discovery has
resulted in the granting of new trials. See, e.g., Valle v. State,
394
So. 2d 1004, 1008 (Fla. 1981) (reversing for new trial because
under Florida Rule of Criminal Procedure 3.220, requiring State
to disclose all witnesses, “It necessarily follows that the trial court
must allow defense counsel the time to interview these persons to
properly prepare for trial.”). As the majority notes, the trial court
has the continuing authority to do so regardless of the disposition
here. Without any such disposition on the merits, however, I must
respectfully dissent.
Departure from the Essential Requirements of Law
On the facts presented here, Adelson’s blanket invocation of
the Fifth Amendment right against self-incrimination was
improper, and the trial court departed from the essential
requirements of the law in allowing it. A witness must invoke the
privilege question by question, so the trial court can determine as
to each question whether the answer would endanger the witness’s
rights. See United States v. Thornton,
733 F.2d 121, 125 (D.C. Cir.
10
1984); Commitment of Smith v. State,
827 So. 2d 1026, 1029 (Fla.
2d DCA 2002) (holding that a deponent must make a specific
objection to a particular question instead of asserting a blanket
privilege). An exception to this requirement exists if there is a
reasonable basis to believe that answering any relevant questions
may endanger the witness. Thornton,
733 F.2d at 126.
Here, however, the record does not demonstrate any such
danger to Adelson, nor that she alleged any such danger. The trial
court did not hold a hearing on the motion for a protective order,
and Adelson presented no argument to support her bald assertion
that any substantive question asked at deposition would lead to
incriminating evidence requiring Adelson to invoke her Fifth
Amendment privilege. Under these facts, Adelson did not
demonstrate good cause to avoid the deposition. Instead, to
properly invoke her Fifth Amendment privilege against self-
incrimination, Adelson was required to appear at the deposition
and assert the privilege on a question-by-question basis. The trial
court’s failure to require her to do so was a departure from the
essential requirements of law.
Irreparable Harm
I agree with the majority that orders denying discovery rarely
constitute irreparable harm. But the analysis is different when the
discovery at issue is the deposition of a material witness, the denial
of which constitutes irreparable harm. Akhnoukh v. Benvenuto,
219 So. 3d 96, 98-99 (Fla. 2d DCA 2017) (holding denial of right to
depose a material witness constitutes irreparable harm); Nucci v.
Simmons,
20 So. 3d 388, 390 (Fla. 2d DCA 2009) (recognizing
irreparable harm occurs upon denial of right to take testimony of
material witness, because “there would be no practical way to
determine after judgment what the testimony would be or how it
would affect the result” (quoting Medero v. Fla. Power & Light Co.,
658 So. 2d 566, 567 (Fla. 3d DCA 1995))). Irreparable harm exists
here because the trial court precluded in its entirety the deposition
of a uniquely central, material witness. See Nucci,
20 So. 3d at 390
(defining material witness as one who possesses information going
to some fact affecting the merits of the cause and about which no
other witness might testify).
11
As the majority correctly notes, and as both parties have
indicated, there do not appear to be any criminal cases applying
the rule that denial of the right to depose a material witness
constitutes irreparable harm for purposes of certiorari jurisdiction.
But the majority cites only cases involving exclusion of a piece of
evidence, none depriving a party entirely of the ability to depose a
material witness, none depriving a criminal defendant of
constitutional rights secured by the right of discovery under
Florida Rule of Criminal Procedure 3.220. In this context, I believe
the departure from the essential requirements of law that clearly
has occurred also serves to establish irreparable harm. No one
except perhaps the witness herself knows exactly the content and
parameters of the testimony she is willing to give, and she can
assert her Fifth-Amendment privilege on a question-by-question
basis, thus protecting both her constitutional rights and
Magbanua’s rights. But, if the deposition does not occur before
trial, and Magbanua is convicted, it becomes impossible to
determine what might have been—placing Magbanua beyond
relief. We cannot give her the right of pre-trial preparation after
trial. We have, and should exercise, certiorari jurisdiction. See
Nucci,
20 So. 3d at 390. I would therefore grant the petition.
_____________________________
Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for
Petitioner.
Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee
Bureau Chief, Criminal Appeals; and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Respondent State of Florida.
John F. Lauro and Michael G. Califano of Lauro Law Firm, Tampa,
for Non-Party Wendi J. Adelson.
12
