Wednesday, June 3, 2009

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.

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