Law Updates for June 26, 2009

Cote, 34 FLW 1219, 4th DCA, exigent circumstances: Where ofcs responded to an anonymous complaint regarding narcotics activity in a certain apt. Apt door was open when they arrived, and ofcs observed the def in the kitchen, 2-5 feet in front of them, wiping down the counter with a paper towel and also observed a digital scale on the kitchen counter with a white powdery substance and straw on it. Ofcs were not justified in entering the apt without a warrant. Where the def was not aware of the ofc's presence, his action in wiping down the counter would not be interpreted an attempt to destroy evidence in response to law enforcement's presence. Ofcs, not def, created exigent circumstances.

Wilson, 34 FLW 1221, 4th DCA, Lewd and Lascivious: Trial court erred in forcing the def to choose between testifying further and giving up his attorney when the defense counsel expressed viewpoint that more testimony was not a good idea. Most of the testimony of the def was relevant to the charges. No suggestion he intended to testify falsely and no rule of evidence precluded his testimony. Trial court should have ordered the def counsel to continue with the direct examination. New trial required.



The Law Offices of Roger P. Foley, P.A.

Law Updates for June 19, 2009

Wynn, 34 FLW 1158, 2nd DCA, where officer conducted a pat down search of the def who was a passenger in the vehicle - Pat down revealed nothing that might have been weapon or contraband. Then ofc asked the def if he minded if the ofc took items out of the def pocket and put them on the car, and the def did not reply. Ofc further search of the def after the pat down was illegal. Failure to respond not unequivocal consent. Ofc seeing cocaine in driver's side down did not justify the search of the def, where there was no evidence that cocaine was in plain view of the def.

K.A., 34 FLW 1165. 4th DCA, Juvenile, RAWOV. Ofc observed crowd of young people in a skating rink, approached crowd to disperse. While some people were running away, juvenile in middle of the crowd yelled, "why are you leaving" and "don't leave" and "they can not do anything about it." Juvenile ignored the ofc request to stop yelling at the crowd. Although ofc warned him he would be taken into custody, this is not enough for resisting arrest without violence. Ofc was not executing a legal duty. Group was not trespassing or violating a curfew or engaged in unlawful activity and ofcs were not asked by rink management to disperse the crowd. Juvenile's words were not obstructing or causing a riot. -error to deny JOA

*Krampert, 34 FLW 1179, 2nd DCA, failure to register as sexual predator. Jury instructions - fundamental error by failing to instruct the jury that before it could find the def guilty, state failed to prove that the def knowingly failed to register by not reporting in person the sheriff's office.

Confessore, 34 FLW 1187, 5th DCA, - Good vindictiveness case

• trial court inserted himself in the plea discussions which were ultimately unsuccessful


• plea negotiation were off the record


• first trial resulted in mistrial


• trial judge prevented the def from accepting the state's plea offer made by the state after the trial and made a different offer that was rejected by the defendant


• judge imposed a disparate sentence from the plea offer after the 2nd trial


• record did not reveal any new facts the judge learned after the 2nd trial which were unknown to him after the first trial

REMAND FOR SENTENCING BEFORE A DIFFERENT JUDGE

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The Law Offices of Roger P. Foley, P.A.

Law Updates for June 12, 2009

Washington, 34 FLW 1116, 4th DCA, Records certifying the non-licensure of a contractor is a public record (State of Florida Licensing Division, Construction Industry Licensing Board) and non-testimonial under Crawford.

Bryant, 34 FLW 1120, 4th DCA, Self-defense, Abuse of discretion to refuse to permit a witness to testify that the def looked fearful when approached by the victim. It was necessary for the witness to adequately communicate her observations. Would not mislead the jury. No specialized training was necessary to recognize the fear in def's expression. Relevant to demonstrate that the def's fear was real, not harmless where def testified that the victim had a crowbar in his hand earlier and continued to threaten the def while he approached Who was holding the gun and not allowed to use the word "fearful" had to settle on the word "angry" a different emotion and not associated with self-defense.

Lollie, 34 FLW 1122, 1st DCA, warrantless entry into back yard of def's residence to knock on back door was an illegal search - fact that residence was in a rural area and that officers believed someone was home after knocking on the front door did not make entry into back yard reasonable.



The Law Offices of Roger P. Foley, P.A.

Law Updates for June 5, 2009

Fleurimond, 34 FLW 1063, 3rd DCA, where the trial court had granted motion in limine prohibiting state from introducing evidence concerning prior drug activity at house where the def allegedly sold cocaine. Court erred in failing to either grant motion for mistrial or immediately sustain the objection and give curative instruction where the police ofc testified they were doing a surveillance at a location known to be selling drugs. Trial court also abused discretion in denying motion for mistrial based on cumulative prejudice resulting from improper argument (flush drugs down the toilet no evidence presented of that, at or near school reduced by court and state argued next to elementary school, appeal to community sensibilities how unfair it was in county that people were trafficking in drugs)

Mobley, 34 FLW 1090, 2nd DCA, where def had been arrested and secured in a patrol car, and all occupants were outside the house. There was no lawful basis for the officers to re-enter the house and conduct a warrantless search. Counsel was deficient for failing to file a Motion to Suppress firearm discovered in search of bathroom of house after def had been arrested.



The Law Offices of Roger P. Foley, P.A.

Law Updates for May 29, 2009

Nottage 34 FLW 993, 3rd DCA, Deadlocked jury-based on the totality of circumstances. Trial court did not coerce the jury to return a verdict by giving the Allen charge following a note the jury was deadlocked, failing to declare mistrial, and sending the jury home for the evening alone does not constitute reversible error. Although court fails to admonish jury at the outset of deliberations not to disclose voting results, and failed to admonish the jury when jury reported its voting tally, court gave no further instructions to jury after Allen charge or in any way coerced verdict, totality of circumstances surrounding jury's deliberations did not render verdict unreliable.


Evans, 34 FLW 1005, 4th DCA, Batt LEO. Lawful execution of a legal duty. Jury instruction stating that a "trespass or narcotic investigation is a lawful execution of a legal duty" was improper because it did not convey to jury that it was to determine whether the trespass or narcotics investigation was lawful. Instruction improperly directed a verdict for the state. Trial court failure to give requested jury instruction that the word "lawful" be inserted before trespass constituted reversible error as it would have conveyed to the jury that it needed to determine the investigation was lawful before they determine the officer was executing a legal duty


Brown, Jr. 34 FLW 1016, 2nd DCA, Trial court erred in instructing jury in accordance with 794.022(1), that the testimony of the victim need to be corroborated in a prosecution for sexual battery. Instruction was misleading and improper comment on the evidence by the trial court, not harmless error lapse of twenty years between the alleged acts and the reporting to the police, no witnesses, no physical evidence, no admissions by the def and no collateral crimes evidence


Laidler, 34 FLW 1035, 1st DCA, Discovery violation by the state. Error to deny def motion to continue in order to investigate witness who was not timely disclosed by the state and whose testimony destroyed the alibi's defense. Trial court incorrectly denied based on ground that def opposed the motion, erred in failing to conduct a Richardson hearing, although ASA did not learn of it until week before the trial knowledge to police was imputed to the state.



The Law Offices of Roger P. Foley, P.A.

Law Updates for May 22, 2009

Suarez, 34 FLW 967, 3rd DCA, Limitation of actions. Incarceration in federal prison within state did not constitute absence from state for tolling of statute of limitations, where state issued warrant for def's arrest while in federal prison located in Florida, but did not serve the warrant until after the def was released and SOL expired trial court properly dismissed the charge

Mainwaring, 34 FLW 976, 5th DCA, speedy trail-unavailability-incarceration in another county-where the court was aware that the def was held in jail in another county, as evidenced by the fact the trial court had issued several transportation orders which were not honored by the other county, and refusal to transfer, seemingly the result of miscommunication, confusion or administrative convenience was not justified, def was not "unavailable" for trial-error to deny the motion to discharge

Bonus:
Montejo v. La., 07-1529, May 26th, 2009, USSC, overrules Michigan v. Jackson, twenty-year old case: police can initiate interrogation of a criminal defendant post-magistrate or other similar proceeding unless the def actually invokes his right to a lawyer or otherwise asserted his 6th Amendment right to counsel where he stood mute at the hearing and the judge ordered appointment of counsel. BAD DECISION


The Law Offices of Roger P. Foley, P.A.

Law Updates for May 15, 2009

Ingmire, Jr. 34 FLW 894, 2nd DCA, excess of plea agreement. Error to impose 15 year sentence based on def's willful failure to appear in violation of plea agreement where the state presented no evidence that the def's actions were willful, relevant evidence without the def's testimony was that he erred and compounded the error through well-intended but improper action

L.P. 34 FLW 909. 3rd DCA, search and seizure. Ofc stopped vehicle in which juv was a passenger after 2:00 a.m. and determined he was violating the curfew. After he received his age he detained him and ordered him out of the vehicle told him to put his hands on the car and stay put. No reasonable grounds to believe he was in violation of the curfew ordinance where the ofc did not ascertain juvenile's reason for being in public after curfew hours. No pc for curfew violation prior to juv admitting he had marijuana on him. Not sufficiently attenuated from the illegal seizure

Panter. 34 FLW 921, 1st DCA, ofc who observed a hand to hand transaction of an unknown nature between the occupants of a van and a person who exited a house known for narcotics sales did not have reasonable suspicion of criminal activity to justify investigatory stop of occupants of the van. Denied motion to suppress where ofc had detained the def and another occupant of the van, informed that a K-9 unit would be brought there, and K-9 dog alerted on the van



The Law Offices of Roger P. Foley, P.A.