Wednesday, June 29, 2011

Law Updates for June 24, 2011

Gizaw, 36 FLW 1266, 2nd DCA, Constructive Possession - Error to deny JOA where State did not establish defendant's constructive possession of cannabis discovered in suitcase in trunk of defendant's car during a permissive search.  No independent proof that defendant had knowledge of presence of can or had dominion and control over suitcase containing cannabis where suitcase contained no fingerprints, only other items in suitcase were jeans of a size fitting passenger and defendant's unrefuted testimony establishing defendant was not in the exclusive possession of vehicle as the passenger had keys to vehicle and access to trunk.  State failed to show the $939 cash in defendant's possession was in any way connected with dealing of cannabis as defendant's unrefuted testimony that money was for school.

Fernandez. 36 FLW 1274, 3rd DCA, Trial court improperly denied motion to suppress evidence obtained when police, surveilling defendant's home which was surrounded by tall fences and remote-controlled gates, capitalized on defendant's opening the gate for the purpose of his leaving the property by quickly entering the property and blocking the defendant's exit, after which the defendant refused to sign a consent form for a search but nonetheless opened the door for the police, who entered and found 144 marijuana plants.  Officer entered the opened gate committed a trespass.  Opening of the gate was not an open invitation to the public, or by extension to the police.  Consent later granted was tainted and no brake in the chain of earlier events.

Dortch. 36 FLW 1302, 1st DCA, Fleeing and eluding - Reversible and harmful error to allow into evidence that the car the defendant was in fleeing was stolen three months earlier.  Evidence was not necessary to describe events that took place after car was stopped and defendant fled, justification for the pursuit was not a material fact in dispute.

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

Thursday, June 23, 2011

Law Updates for June 17, 2011

A.L.T., 36 FLW 1203, 4th DCA, Exceed scope of consent - Asked juvenile if he could search juvenile for weapons or drugs and then went through his wallet without further consent, finding an ID card of an elderly women whose home the juvenile later confessed to burglarizing.  Reasonable person would understand that the consent to search would constitute an agreement to only search for weapons or drugs.

Evans, 36 FLW 1205, 4th DCA, Prosecutorial Misconduct - Fundamental Error - State argument implied tampering by a witness without any evidence and of improper contact by that witness.  "they had three weeks to think of something and that they concocted their story."

Wheeler, 36 FLW 1239, 5th DCA, Search and Seizure-Vehicle-Curtilage - Where search warrant of a residence authorized search of any vehicle located within the resident's curtilage, search of defendant's car not authorized where the car was partially overlapping the portion of the driveway outside the chainlink fence surrounding the residence on but was not blocking ingress and egress to the property.  The fact that the homeowner chose to enclose the yard with a fence and defendant's vehicle was parked outside the fence is the most compelling factor.

Diaz, 36 FLW 1242, 5th DCA, hearsay - Error for trial court to admit testimony regarding an anonymous tip to police identifying defendant as a suspect where person who tipped off the police never testified at trial and testimony regarding the anonymous tip was excluded prior to trial with a motion in limine.  Non-testifying witness furnished the police with testimony of the defendant's guilt.  It is hearsay and not harmless beyond a reasonable doubt.  Evidence of the defendant's guilt was not overwhelming where victim could not identify defendant from surveillance video and did not mention prominent mole on defendant's face.

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

Monday, June 20, 2011

Law Updates for June 11, 2011

DMV v. Hernandez, 36 FLW 243, Sup Ct., A driver's license suspension can be predicated upon a refusal to take a breath test only if the refusal is incident to a lawful arrest.

Corona, 36 FLW 247, Sup Ct., Discovery deposition does not satisfy Crawford.  Defendant does not have the opportunity to cross-examine a declarant of a testimonial statement.  Defendant's constitutional right of confrontation was violated when officer allowed to testify concerning statements made immediately after incident by the victim, where the def did not have adequate opportunity to cross examine the victim, victims statements to the police were testimonial and no ongoing emergency and taken to determine if criminal activity had taken place.

Sun, 36 FLW 4th DCA, trial court properly suppressed def patient contracts and statements from his doctors which police officer obtained without a subpoena or a warrant.  Patient contacts fall within the scope of privacy in medical records and doctors statements fall within the scope of doctor-patient privilege.  Trial court properly denied motion to suppress def's pharmacy records which were obtained without a subpoena or warrant.

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

Thursday, June 2, 2011

Law Updates for May 27, 2011

Delgado, 36 FLW 220, Supreme Court - Def who stole vehicle while a two-year old child was asleep in the backseat was erroneously convicted of kidnapping with intent to fabricate a felony where def was not aware of the presence of the child until after he stole the vehicle.  Aware after of the act is not relevant to the kidnapping.  State must prove def became aware of the presence of the victim before or during the commission of the underlying felony.

Wiley, 36 FLW 1056, 4th DCA, Second Degree Murder - Error to deny JOA to 2nd D. Murder where evidence does not establish a depraved mind and with indifference to human life.  Two eyewitnesses testified that the def hit the victim over the head with a gun and gun discharged and def claimed there was a scuffle and gun discharged and def claimed there was a scuffle and gun discharged in the def's attempt to secure the gun.  Def conduct was less a result of malice and more extremely reckless behavior, insufficient to infer malice, evidence sufficient to sustain conviction for third-degree murder, as agg battery resulting in death can be third degree murder.

Croce, 36 FLW 1958, 4th DCA - Error to not dismiss juror fo cause.  Victim in a rape case, who stated in great detail her concerns about being on a jury in this case based on her past experience, concerns raise a reasonable doubt about ability to be fair and impartial.  New trial where def used all challenges and forced to accept a juror lawyer wanted to strike.

Thomas, 36 FLW 1059, 4th DCA, Discovery violation - Detective listed as a witness but not as an expert, when the state called to testify as an expert as to the packaging of the drugs, all while the witness was on the witness stand, def counsel not waive appeal based on accepting the court's remedy of having the def list as rebuttal state witnesses, Richardson hearing was inadequate here

Guardado, 36 FLW 1087, 4th DCA, Blood test results - Error to deny motion to suppress medical records containing blood test results obtained by the state through subpoena following an automobile accident in which the def was the driver and two passengers were killed where state failed to establish a nexus between the medical blood and the automobile crash. State could not rely on results from the blood samples taken at request of the officer as basis for the subpoena for medical records where the state stipulated that the ofc did not have probable cause for the blood draw.  State previous attempt not done in bad faith, state is not precluded from again seeking the medical records through subpoena if it provides further evidence demonstrating relevance of medical blood evidence.

Dillon-Watson, 36 FLW 1089, 4th DCA, vehicle and motion to suppress - Court erred in denying motion.  Search could not be based, as state admitted, as a investigatory stop based on an anonymous tip.  Consensual encounter totality of circumstances reveal a reasonable person would not felt free to leave the encounter and def 's consent to search the car was not voluntary acquiescence as a show of authority"Let me take a good look at your vehicles and if everything checks out okay, you guys will be good to go."

DeWolfe, 36 FLW 1106, 1st DCA, Hearsay exception, declaration against penal interest -  Error to exclude testimony of two defense witnesses that heard third party confess to the crime for which the def was on trial.  Third party unavailable, died by the time of trial, confession against penal interest, and corroborating circumstances were sufficient to demonstrate trustworthiness of declaration, credibility of in court witness is question for the jury and not judge and has nothing to do with admissibility. Error not harmless.

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