Wednesday, April 13, 2011

Law Updates for April 8, 2011

Roussonicolas, 36 FLW 644, 4th DCA.  Trial court reversibly erred in ruling that the transcript of sworn testimony exonerating the def given by co-def at def's bond hearing was inadmissible.  Co-def was unavailable to testify at trial, invoked 5th A. The State had the opportunity to cross co-def at the bond hearing and, given exculpatory nature of the testimony, the State had similar motive at bond and at trial to discredit the co-def's testimony and show it was not worthy of belief.

Trapp, 36 FLW 652, 4th DCA.  Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction.  Def did not open the door when he said he told the victim that if she lied she would be charged with perjury.  State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both.  Plus Allen charge needed as jury was out a long time deliberating.

Robinson, 36 FLW 655, 4th DCA.  Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene.  Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis.  Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness.  Error compounded by prosecutor when she said he took the stand and "did not say anything."  New trial.

Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent.  Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.

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

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