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.
Discussions and Summaries of updates to Florida Law from the web pages of Criminal Defense Attorney, Roger P. Foley. www.lawyerfoley.com
Wednesday, April 13, 2011
Wednesday, April 6, 2011
Law Updates for April 1, 2011
R.H. 36 FLW 604, 4th DCA, Juvenile could not be adjudicated delinquent for possession of weapon on school property based on his possession of common pocketknife, blade 3 1/4 inches.
Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.
Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point. Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)
J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.
The Law Offices of Roger P. Foley,P.A.
Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.
Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point. Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)
J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.
The Law Offices of Roger P. Foley,P.A.
Wednesday, March 30, 2011
Law Updates for March 25, 2011
Ranglin, 36 FLW 561, 4th DCA, Court erred when it refused a challenge for cause to a juror that said under no circumstances would be appropriate for a man to hit a woman. Reasonable doubt if juror could fairly consider the def''s case for self-defense. Denial of cause challenge forced the def to use all of his peremptory challenges precluding him from expending challenges on other jurors and was reversible error.
Moncrieffe, 36 FLW 565, 4th DCA, Escape - Evidence failed to show defendant was validly arrested and in lawful custody of the police at the time of alleged escape. Officer exceeded his authority by taking def into custody outside the territorial limits of his jurisdiction without a warrant. Fact: there was pc to arrest is not controlling.
Hentz, 36 FLW 568, 4th DCA, Search and seizure, Intercepted communications - Error to deny motion to suppress evidence seized based on incriminating responses made by def, who was in his home, during telephone conversation with the co-defendant, who was in police interview room equipped with recording equipment sensitive enough to record both ends of the telephone conversation. Officer intentionally intercepted def's oral communication within the meaning of the statute prohibiting interception of wire, oral or electronic communication. Def had reasonable expectation of privacy in phone conversation at home, did not direct his conversation to multiple people and did not know the co-def was sitting in police interview room room at the time of the conversation.
O'Brien, 36 FLW 574, 1st DCA, After def invoked right to counsel, police unlawfully initiated conversation with the def (40 minutes later). He expressly asked would the def be willing to reconsider and speak with a detective at the station and officer stated we'd appreciate it when the def was vacillating, and telling the def the truth would come out after the authorities interviewed the child victim. Def subsequent written waiver was involuntary. New trial, Harmful error.
The Law Offices of Roger P. Foley,P.A.
Moncrieffe, 36 FLW 565, 4th DCA, Escape - Evidence failed to show defendant was validly arrested and in lawful custody of the police at the time of alleged escape. Officer exceeded his authority by taking def into custody outside the territorial limits of his jurisdiction without a warrant. Fact: there was pc to arrest is not controlling.
Hentz, 36 FLW 568, 4th DCA, Search and seizure, Intercepted communications - Error to deny motion to suppress evidence seized based on incriminating responses made by def, who was in his home, during telephone conversation with the co-defendant, who was in police interview room equipped with recording equipment sensitive enough to record both ends of the telephone conversation. Officer intentionally intercepted def's oral communication within the meaning of the statute prohibiting interception of wire, oral or electronic communication. Def had reasonable expectation of privacy in phone conversation at home, did not direct his conversation to multiple people and did not know the co-def was sitting in police interview room room at the time of the conversation.
O'Brien, 36 FLW 574, 1st DCA, After def invoked right to counsel, police unlawfully initiated conversation with the def (40 minutes later). He expressly asked would the def be willing to reconsider and speak with a detective at the station and officer stated we'd appreciate it when the def was vacillating, and telling the def the truth would come out after the authorities interviewed the child victim. Def subsequent written waiver was involuntary. New trial, Harmful error.
The Law Offices of Roger P. Foley,P.A.
Saturday, March 19, 2011
Law Updates for March 11, 2011
Cannon, 36 FLW 444, 4th DCA, Undercover officer, in giving defendant cocaine after transaction was complete and allowing him to go into the community with that substance, was in violation of due process where officer created the situation for possession to occur. Charge properly dismissed. Earlier charge of sale of cocaine was improperly dismissed, as the offense had already been completed prior to allowing the defendant to take cocaine.
Ortuno, 36 FLW 471, 1st DCA, Lewd and Lascivious, Hearsay - Abuse of discretion to admit alleged victim's prior consistent statements made during interview with CPT, which did not occur prior to the time that a motive to fabricate existed. Not harmless where case was based on the truthfulness of victim and defendant. Testimony was repeatedly raised and communicated to the jury by three different witnesses, and CPT interviewer was qualified as an expert, creating inference she had the ability to extract truthful responses from sexually abused children. New trial.
The Law Offices of Roger P. Foley,P.A.
Ortuno, 36 FLW 471, 1st DCA, Lewd and Lascivious, Hearsay - Abuse of discretion to admit alleged victim's prior consistent statements made during interview with CPT, which did not occur prior to the time that a motive to fabricate existed. Not harmless where case was based on the truthfulness of victim and defendant. Testimony was repeatedly raised and communicated to the jury by three different witnesses, and CPT interviewer was qualified as an expert, creating inference she had the ability to extract truthful responses from sexually abused children. New trial.
The Law Offices of Roger P. Foley,P.A.
Wednesday, March 9, 2011
Law Updates for March 4, 2011
Pantoja, 36 FLW 91, Fla, Lewd and Lascivious Molestation - Trial court properly excluded evidence that Victim had accused another person of molesting her and later recanted that accusation. Under 90.610, not admissible as impeachment by evidence of prior misconduct where there was no criminal conviction as a result of the misconduct and not admissible to prove bias or motive to lie. Not admissible under 90.405(2) where Victim's character was not an essential element of the charge or defense and not admissible as a specific instance of misconduct to show that the Victim was inclined to lie about sexual abuse. Exclusion of evidence did not violate def's right to confront the witness.
Self, 36 FLW 419, 5th DCA, Speedy trial-Prohibition - The defendant did not waive speedy trial by making an objection to admissibility of business records upon which the State intended to rely to prove def's failure to register as a sex offender. Continuance was attributable to the State where def raised the objection well before trial, and continuance was granted where the State was not prepared for the hearing on def's objection. State did not seek extension of the recapture period or demonstrate exceptional circumstances existed to warrant extension of the recapture period. Discharged
Ibarra, 36 FLW 423, 2nd DCA, Discovery-State failed to comply - Trial court erred in allowing the State to impeach def with a previously undisclosed ORAL statement to detective that was contrary to def's trial testimony with first conducting a Richardson hearing to determine if discovery violation occurred and was the def prejudiced.
The Law Offices of Roger P. Foley,P.A.
Self, 36 FLW 419, 5th DCA, Speedy trial-Prohibition - The defendant did not waive speedy trial by making an objection to admissibility of business records upon which the State intended to rely to prove def's failure to register as a sex offender. Continuance was attributable to the State where def raised the objection well before trial, and continuance was granted where the State was not prepared for the hearing on def's objection. State did not seek extension of the recapture period or demonstrate exceptional circumstances existed to warrant extension of the recapture period. Discharged
Ibarra, 36 FLW 423, 2nd DCA, Discovery-State failed to comply - Trial court erred in allowing the State to impeach def with a previously undisclosed ORAL statement to detective that was contrary to def's trial testimony with first conducting a Richardson hearing to determine if discovery violation occurred and was the def prejudiced.
The Law Offices of Roger P. Foley,P.A.
Friday, March 4, 2011
Law Updates for February 25, 2011
McKelvin, 36 FLW 347. 4th DCA, Anonymous tip - Investigatory stop of the vehicle, where unidentified anonymous person approached officers and gave them a detailed description of a vehicle, including its tag number, and the occupant of the vehicle, who was engaged in suspected illegal activity. The officer did not have reasonable suspicion justifying an investigatory stop of the vehicle, where the information provided by the anonymous source was not sufficiently corroborated by the officers. Tipster was not a citizen informant; no different from someone who gives info over the phone where the informant gave no contact information or other way to locate the informant.
Bonge, 36 FLW 354, 1st DCA, Battery - Given facts of the case, which were admitted by the State, State could not establish that the def intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to the emergency room. Error to deny def's motion to dismiss.
The Law Offices of Roger P. Foley,P.A.
Bonge, 36 FLW 354, 1st DCA, Battery - Given facts of the case, which were admitted by the State, State could not establish that the def intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to the emergency room. Error to deny def's motion to dismiss.
The Law Offices of Roger P. Foley,P.A.
Law Updates for February 18, 2011
Blackmon, 36 FLW 296, 2nd DCA, - Conviction for Carrying a Concealed Firearm reversed. Evidence was insufficient to prove firearm that def carried was ever concealed. Officer's testimony that he was unable to see firearm in def's possession from his vantage point until the moment the firearm was pointed at him was not sufficient to prove concealment.
Elghomari, 36 FLW 304, 4th DCA, Statement of child victim allowed requisite findings of reliability per statute, no discovery violation, state not required to disclose that the victim's oral statement revealing two incidents of molestation that were charged in the information, were not written or recorded and did not materially alter a prior written or recorded statement previously provided by the state to the defendant
McCloud, 36 FLW 313, 5th DCA, No error in sentencing the def to prison - Sanction based on the information that def could present a danger to the public, by voluminous theft record and not violence. Statute "danger to the public" not only person threatening physical violence or injury.
Pierre-Charles, 36 FLW 329, 2nd DCA, Hearsay - Trial court erred when it admitted head nod of def's brother which was introduced by the state as a affirmative response to father's question whether or not the def committed the murders, reasonable possibility the error effected the verdict. Head not considered hearsay in form of nonverbal assertion
The Law Offices of Roger P. Foley,P.A.
Elghomari, 36 FLW 304, 4th DCA, Statement of child victim allowed requisite findings of reliability per statute, no discovery violation, state not required to disclose that the victim's oral statement revealing two incidents of molestation that were charged in the information, were not written or recorded and did not materially alter a prior written or recorded statement previously provided by the state to the defendant
McCloud, 36 FLW 313, 5th DCA, No error in sentencing the def to prison - Sanction based on the information that def could present a danger to the public, by voluminous theft record and not violence. Statute "danger to the public" not only person threatening physical violence or injury.
Pierre-Charles, 36 FLW 329, 2nd DCA, Hearsay - Trial court erred when it admitted head nod of def's brother which was introduced by the state as a affirmative response to father's question whether or not the def committed the murders, reasonable possibility the error effected the verdict. Head not considered hearsay in form of nonverbal assertion
The Law Offices of Roger P. Foley,P.A.
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