Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 01/26/2011
Editor: Carolyn Snurkowski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
United States Supreme Court
Swarthout v. Cooke, 10-333. Decided January 24, 2011. Summary by Dan Schweitzer at NAAG.
The Court summarily reversed a Ninth Circuit decision that had granted habeas relief on the ground that the California state courts had unreasonably applied the state-law “some evidence” standard for reviewing parole denials and therefore denied due process to respondents. The Court reiterated that “federal habeas corpus relief does not lie for errors of state law,” and held that the “Due Process Clause merely requires fair procedures.” There was no question that respondents received fair procedures at their parole hearings and appeals; their complaint concerned the merits of the state court rulings. The Court stated that to convert California’s “some evidence” rule into “a component” of a federal liberty interest would wrongly “subject to federal-court merits review the application of all state-prescribed procedures in cases involving liberty or property interests,” which “has never been the law.”
Decision:
Ortiz v. Jordan, 09-737. Decided January 24, 2011. Summary by Dan Schweitzer at NAAG.
The Court announced several holdings that pertain to cases where a federal court denies qualified immunity at the summary judgment stage, the case proceeds to trial, and the jury rules for the plaintiffs. The Court held that (1) the defendant state officers may not appeal the order denying summary judgment after the trial, and (2) where, after the trial, the defendants wish to appeal the denial of qualified immunity by contesting the sufficiency of the evidence, they must first file a Rule 50(b) motion asking the district court to enter judgment for them. The Court left open whether defendant officers must first file a Rule 50(b) motion if their qualified immunity appeal is purely legal (i.e., the dispute concerns solely the state of pre-existing law).
Decision:
Thompson v. North American Stainless, LP, 09-291. Summary by Dan Schweitzer at NAAG.
The Court unanimously held that Title VII’s anti-retaliation provision forbids an employer from firing a worker in retaliation for the worker’s fiancée (who also worked for the employer) filing an EEOC charge alleging discrimination. The Court further held that the worker may sue the employer for such an alleged violation, finding that the Title VII right-of-action provision allows a plaintiff to sue if he or she “falls within the zone of interests protected by Title VII.”
Decision:
Chase Bank USA, N.A. v. McCoy, 09-329. Summary by Dan Schweitzer at NAAG.
The Federal Reserve Board’s Regulation Z requires credit card issuers to tell cardholders the initial interest rate and to provide notice when interest rates are increased. In this case, the Court unanimously held that Regulation Z does not require a credit card “issuer to notify a cardholder of an interest rate increase instituted pursuant to a provision of the cardholder agreement giving the issuer discretion to increase the rate, up to a stated maximum, in the event of the cardholder’s delinquency or default.”
Decision:
Certiorari Granted: Summaries by Dan Schweitzer at NAAG.
Howes v. Fields, 10-680. Certiorari granted January 24, 2011.
The question presented is whether the Supreme “Court’s clearly established precedent under 28 U.S.C. §2254 holds that a prisoner is always ‘in custody’ for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.” In this case, respondent was escorted from his prison cell to a conference room where he was questioned by police ─ but he was neither shackled nor handcuffed, and he was told he could leave whenever he wanted to. The Sixth Circuit held that a Michigan Court of Appeals decision holding that he was not in custody for Miranda purposes was contrary to, and an unreasonable application, of clearly established law.
Reynolds v. United States, 10-6549. Certiorari granted January 24, 2011.
At issue is whether an individual convicted of violating the Sex Offender Registration and Notification Act ─ which requires every sex offender to register, and keep the registration current, in all states ─ has standing to challenge an interim rule adopted by the Attorney General that applies the law to those who were convicted of sex crimes before the law’s enactment.
First District Court of Appeal
Suppression motion denied in error; evidence insufficient to establish lawful basis for stop.
Hill v. State, 1D10-2100. Opinion filed January 24, 2011.
Hill appealed the denial of his motion to suppress the evidence seized from his vehicle after he was stopped by a police officer.
The suppression hearing revealed that Sergeant Bringmans, while on patrol in a high crime area, noticed Hill standing next to a vehicle in the parking lot of a closed gas station. Bringmans testified that Hill “looked right at me went to his driver’s door, got in and took off. . . .” Bringmans followed Hill, however, he testified there was nothing unusual about Hill’s vehicle or the way he was driving it. Bringmans testified he stopped Hill because the gas station had been closed for more than two hours; the gas station was in a high crime area; and because Hill entered his car and left the gas station “upon making eye contact with Bringmans.” When Bringmans stopped Hill’s vehicle, he “requested backup from a nearby canine unit” and sent another officer to check out the gas station to “determine whether any damage or criminal mischief had taken place.” The dog alerted and the search revealed “marijuana and a loaded firearm.” Hill was arrested and charged by information with “carrying a concealed firearm and possession of cannabis (less than 20 grams).” The trial court denied Hill’s motion to suppress finding that “given the totality of the matters testified to by Sergeant Bringmans, a reasonable suspicion existed to stop the appellant’s vehicle.” Hill pled nolo contendere and reserved his right to appeal.
While the officer testified he suspected that Hill had burglarized the gas station or vandalized the building or parking lot, the 1st DCA noted that “it is apparent that the officer did not have knowledge of any facts relating to a specific criminal offense, a fact which is underscored by the use of the canine unit.” The 1st DCA concluded that “[e]ven when construed in a light most favorable to the State, the circumstance identified by the officer as prompting the stop was insufficient to establish a reasonable suspicion.”
The 1st DCA also addressed the State’s argument on appeal “that the police obtained a reasonable suspicion to stop appellant’s vehicle after appellant engaged in ‘headlong flight.’” Headlong flight was defined as “the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673 (2000).
- Headlong flight in a high crime area may provide an officer with a reasonable suspicion to investigate further. F.E.A. v. State, 804 So. 2d 528, 529 (Fla. 1st DCA 2002). However, reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears. See F.E.A.
The 1st DCA reversed the order denying Hill’s motion to suppress; reversed Hill’s judgment of conviction; and vacated Hill’s sentence.
Assistant Attorney General Christine Guard represented the state.
[Hill v. State, 01/24/11]
Opinion:
Third District Court of Appeal
Defendant convicted of felony resulting in a death is subject to statutory amendment that provides “a felony that resulted in a death” can be brought at any time.
Calderon v. State, 3D08-1641. Opinion filed January 19, 2011.
Calderon, charged with first-degree murder and conspiracy to commit first-degree murder, was acquitted of the first-degree murder charge. Calderon appealed his conviction and sentenced for conspiracy to commit murder in the first-degree.
The facts revealed that the victim was killed in 1992 and it wasn’t until 1999, “when a tip from a federal inmate (‘the informant’) linked the defendant to the murder.” “The evidence—consisting principally of the informant’s trial testimony and the defendant’s statement to the police upon his arrest—revealed that the defendant was part of a group that was hired to kill the victim and dispose of his body.” Calderon’s conviction was vacated after he motioned to dismiss the conviction arguing “his prosecution was barred by the four-year statute of limitations in effect in February 1992. § 775.15(2)(a), Fla. Stat. (1991).” The State appealed “and this Court reversed” holding that “if the defendant’s case was not time-barred as of October 1, 1996, it was subject to the statutory amendment providing that a felony ‘that resulted in a death’ can be brought at any time.” Calderon v. State, 951So. 2d 1031, 1035 (Fla. 3d DCA 2007) (“Calderon I”). See Ch. 96-145 § 1, at 130, Laws of Fla. (amending section 775.15(1) to provide that “[a] prosecution for a . . . felony that resulted in a death may be commenced at any time.”). The 3rd DCA remanded to the trial court to determine “whether the case was time-barred as of October 1, 1996.” “On remand, the trial court: (1) extended the limitations period by three years due to the defendant’s continuous absence from this state, see § 775.15(6), Fla. Stat. (1991); (2) concluded that the case was not time-barred as of October 1, 1996; (3) denied the defendant’s motion; and (4) reinstated the conviction.” Calderon appealed.
Following a lengthy analysis, the 3rd DCA affirmed Calderon’s conviction stating that “[b]ecause the defendant was convicted of a felony that resulted in a death, the amended statute of limitations, providing that such prosecutions may be brought at any time, applies.”
- Conspiracy to commit first-degree murder is itself a serious crime, separate from the underlying substantive offense. This conspiracy carried with it a host of potentially harmful results. Among those results, without question, was death. Here, the victim’s death was the object of the conspiracy in which the defendant was involved. Due in no small part to the concerted actions of the group, the instant conspiracy achieved its criminal objective. Thus, for the purposes of section 775.15(1)(a), as amended, the instant conspiracy resulted in a death.
Assistant Attorney General Ansley Peacock represented the state.
[Calderon v. State, 01/19/11]
Opinion:
Fourth District Court of Appeal
Trial court should have remanded for evidentiary hearing to determine if state knowingly presented false testimony.
Mackey v. State, 4D09-527. Opinion filed January 19, 2011.
Mackey appealed his first-degree murder conviction arguing the trial court erred by: (1) denying his motion in limine to prohibit the state from introducing ballistics evidence; (2) overruling his objection to the state’s rebuttal closing argument; and (3) denying his motion for new trial. The 4th DCA affirmed the first two issues.
The record revealed that following Mackey’s conviction and sentence to life in prison, Mackey motioned for “a new trial on the ground of newly discovered evidence pursuant to Florida Rule of Criminal Procedure 3.600)(a)(3) (2008). An affidavit from Mackey’s investigator was attached to the motion stating “the DNA lab’s personnel said that they told the detective that all expedite requests had to be in writing, that they never received a written expedite request from the detective, and that an expedited test could have been completed in approximately one week.” The motion was denied, by the trial court, “without an evidentiary hearing and without making any findings.”
The 4th DCA noted that Mackey was no longer relying on the “affidavit to establish newly discovered evidence pursuant to Florida Rule of Criminal Procedure 3.600(a)(3),” but was now “relying on the affidavit to establish prosecutorial misconduct pursuant to Florida Rule of Criminal Procedure 3.600(b)(5) (2008 and Giglio v. United States, 405 U.S. 150 (1972).” The 4th DCA stated the issue was not preserved for appeal because Mackey’s motion for new trial “did not allege prosecutorial misconduct or cite rule 3.600(b)(5) or Giglio.” However, the Supreme Court recently “acknowledged that a ‘conviction obtained by the knowing use of perjured testimony is fundamentally unfair . . . [for it] involve[s] a corruption of the truth-seeking function of the trial process.’” Johnson v. State, 44 So. 3d 51, 53 (Fla. 2010) (quoting United States v. Agurs, 427 U.S. 97, 103-04 (1976) (emphasis added)). The 4th DCA interprets that statement “to mean that a Giglio violation can constitute fundamental error which may be raised on appeal even if not properly preserved.”
After reviewing the record, the 4th DCA determined that the record does not conclusively refute the alleged Giglio violation. The investigator’s affidavit provided “prima facie allegations that the detective who checked on the DNA samples may have knowingly testified falsely.” Thus, “the affidavit should have prompted the trial court to hold an evidentiary hearing because: (1) the defendant’s investigator was not a lay witness; (2) the DNA lab personnel whom the investigator identified are employed by the state; and (3) during trial, the defendant impeached the woman who identified him as the person who shot the victim.”
The 4th DCA remanded for an evidentiary hearing on the motion for new trial. The district court cautioned “that our holding should not be construed to mean that every motion for new trial alleging a Giglio violation automatically warrants an evidentiary hearing.”
In this case, we believe that an evidentiary hearing would be appropriate to allow the defendant the opportunity to establish that the state knowingly presented false testimony and, if established, to allow the state to show that its use of the testimony was harmless beyond a reasonable doubt.
Assistant Attorney General Daniel Hyndman represented the state.
[Mackey v. State, 01/19/11]
Opinion: