Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 06/01/2012
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
Coleman v. Johnson, 11-1053. Decided May 29, 2012. Summary by Dan Schweitzer at NAAG.
Through a unanimous per curiam opinion, the Court summarily reversed a Third Circuit decision that had granted habeas relief on the ground that the evidence at trial was insufficient to support the conviction under the standard of Jackson v. Virginia, 443 U.S. 307 (1979). The Court stated that the Third Circuit failed to afford “due respect to the role of the jury,” as required by Jackson, and failed to afford due respect to the state courts, as required by AEDPA.
Opinion:
Blueford v. Arkansas, 10-1320. Decided May 24, 2012. Summary by Dan Schweitzer at NAAG.
At petitioner Blueford’s murder trial, the jury was instructed on the greater offense of capital murder and three lesser-included offenses, and was told it could convict on one of them or acquit on all of them. A few hours after it starting deliberating, the jury forewoman reported that the jury was unanimous against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. After further deliberations, the jury reported that it could not reach a verdict, and the court declared a mistrial. By a 6-3 vote, the Court held that the Double Jeopardy Clause does not bar Arkansas from retrying Blueford on the charges of capital murder and first-degree murder. The Court concluded that the jury’s report was not a final resolution that acquitted Blueford of those two charges; and that the trial court did not abuse its discretion by declaring a mistrial without ordering the jury to vote (contrary to Arkansas law) on whether to acquit on those two charges.
Opinion:
Certiorari Denied: May 29, 2012.
All four police taser/stun gun cases were denied review on May 29, 2012. The cases and issues presented are listed below, along with a link to an article from Lyle Denniston at SCOTUS that might be of interest.
Daman v. Brooks
Docket: 11-898
Issue(s): (1) Whether – when officers applied a Taser to the plaintiff, who was under arrest and resisting officers’ efforts to remove her from her car – the Ninth Circuit erred in finding the Taser use unconstitutional where (a) it was the least risky pain compliance option available, and (b) the decision is in conflict with Graham v. Connor’s holding that an arrest necessarily carries with it the authority to use some degree of force; (2) whether the Ninth Circuit erred in holding that the plaintiff stated a Fourth Amendment excessive force claim despite declaring that the record was insufficient to assess the level of force presented by the drive-stun Taser, particularly where the court failed to address whether any less-risky alternatives were available to the officers; (3) whether the Ninth Circuit should have found the use of the Taser constitutional as a matter of law where the officers chose the least risky force option, the result reached by the original Ninth Circuit panel; and (4) whether the Ninth Circuit’s opinion conflicts with other circuits’ decisions on Taser pain compliance applications in similar circumstances.
Brooks v. Daman
Docket: 11-1045
Issue(s): Whether any reasonable official would have understood that it was excessive force in violation of the Fourth Amendment for police officers to deploy a Taser, three times over the course of less than one minute, against a woman who was seven months pregnant, simply because the woman refused to exit her vehicle during a routine traffic stop?
Agarano v. Mattos
Docket: 11-1032
Issue(s): Whether the officers’ use of a Taser on Jayzel Mattos was excessive force under the Fourth Amendment to the U.S. Constitution?
Mattos v. Agarano
Docket: 11-1165
Issue(s): (1) Whether a reasonable official would have understood that it was excessive force in violation of the Fourth Amendment for a police officer to rush into a situation with other officers present and deploy a Taser against a suspect in her own home who was not a potential threat to the officers or the public, who was not actively resisting arrest, and was simply attempting to calm a heated situation and comply with another officer’s instructions to speak outside of her house; and (2) whether summary judgment was properly denied in an excessive force case where genuine issues of disputed fact existed as to whether the use of the Taser on Jayzel Mattos was reasonable.
FYI: Link to Police power to use stun guns left unclear by Lyle Denniston of SCOTUS:
http://www.scotusblog.com/2012/05/police-power-to-use-stun-guns-left-unclear/#more-145588
“Petitions to Watch.” Summaries by Matthew Bush @ SCOTUS.
The following are some of the cases are up for consideration at the Justices’ private conference on May 31, 2012:
Dominguez v. United States
Docket: 11-950
Issue(s): (1) Whether the Eleventh Circuit’s determination that the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires no proof of criminal intent creates a circuit conflict warranting review; (2) whether the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires proof of criminal intent as an essential element, such that a defendant is entitled to present evidence of good faith compliance with the law, and (3) whether a defendant in a prosecution for violating the alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), is entitled to an instruction on “willfulness.”
Bailey v. United States
Docket: 11-770
Issue(s): Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
Slough v. United States
Docket: 11-591
Issue(s): When the government has compelled individuals to make potentially incriminating statements, whether prosecutors’ subsequent use of those statements in deciding to indict those individuals violates the Fifth Amendment’s Self-Incrimination Clause and the use immunity principles of Kastigar v. United States.
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The following petition has been re-listed for the conference of May 31st.
Howes v. Walker
Docket: 11-1011
Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Reversed and remanded; defendant was denied his constitutional right to effective assistance of counsel at penalty phase. All other issues affirmed.
Evans v. Secretary, DOC, 10-14920. Decided May 23, 2012.
Evans, a Florida death row inmate, appealed the District Court’s denial of his federal habeas petition. Evans contends “he was denied his Sixth Amendment right to the effective assistance of counsel when his trial lawyer failed to investigate and to present substantial mitigating evidence.”
Evans’s trial counsel testified at the evidentiary hearing that he met with Evans two times “between the time of his initial appointment and the start of trial,” that he “did not investigate Evans’s ‘mental health because his conversations with Evans gave him no reason to believe that Evans was insane or incompetent,’” and that Evans’s PSI “indicated that his mental health was perfect and that he had only seen a mental health expert when he was young.” With regards to the penalty phase, trial counsel testified he started “preparing more than five months prior to trial,” he met with Evans’s mother and “asked her to collect good character witnesses because Evans could face the death penalty,” and based on his interview with the mother he “adopted the strategy of showing Evans’[s] redeeming qualities, such as how Evans spent time with his children and devoted time to his grandmother, at the penalty phase.” Evans’s trial counsel was not aware of the closehead injury, had not obtained any medical or school records, and “chose to present a positive character ‘strategy because he was aware that Evans’s criminal record indicated a propensity for violence, and he did not want to open the door to the State introducing evidence of Evans’[s] acts of violence during his teenage years.’” The trial court and the Florida Supreme Court found that Evans’s “had not shown deficient performance or prejudice.” See opinion for comprehensive findings.
The 11th Circuit vacated “the order of the District Court with respect to Evans’s claim of ineffective assistance of counsel at the penalty phase” and remanded with instructions to grant the writ. The 11th Circuit affirmed the remainder of the District Courts order. The 11th Circuit found that “counsel’s failure to conduct background investigation and present information in mitigation constituted deficient performance,” and the “state court’s failure to give meaningful consideration to mitigation evidence was unreasonable application of Strickland’s prejudice test.”
- In light of trial counsel’s failure to discharge his constitutional duty to conduct a thorough background investigation—which was well- and long-established at the time of Evans’s 1999 trial—no fairminded jurist could agree with the state court’s conclusion that Evans’s counsel was not deficient.
Finally, following a lengthy analysis, the 11th Circuit stated:
In light of all this, we hold “there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. Had Evans’s jury been confronted with the considerable mitigating evidence that was presented during the postconviction proceedings, “there is a reasonable probability that it would have returned with a different sentence.” Wiggins, 539 U.S. at 536, 123 S. Ct. at 2543.
Assistant Attorney General Kenneth Nunnelley represented the state.
[Evans v. Secretary, DOC, 05/23//12]
Opinion:
Florida Supreme Court
Competent, substantial evidence supports finding that recantation testimony is not credible, untruthful, and exceedingly unreliable.
Spann v. State, SC09-2330. Opinion filed May 24, 2012.
Spann, convicted of first-degree murder and sentenced to death, appealed the denial of his successive 3.851 motion for postconviction relief. Spann’s sole claim was “based on the recantation testimony of accomplice Lenard Philmore, which Spann submitted to the trial court as newly discovered evidence.”
Lenard Philmore, also on death row, submitted an affidavit in 2008 which “stated in part, ‘Anthony Spann didn’t have anything to do with the crime for which we are on death row for.’” The postconviction court held an evidentiary on this claim and “Spann’s sole witness at the hearing was Lenard Philmore.” Philmore “denied that Spann had any involvement in the pawn shop robbery, the bank robbery, or the carjacking and murder of Kazue Perron.” He had “changed [his] life” and “decided it was time to tell the truth.” The postconviction court, following the evidentiary hearing, found Philmore’s recantation “not credible, untruthful, and exceedingly unreliable.”
The Florida Supreme Court, citing to Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)(“Jones II”), stated that they have “previously held that for a conviction to be set aside based on a claim of newly discovered evidence, the defendant must meet two requirements.” The first prong was met: “It is uncontested that Philmore’s recantation is newly discovered evidence.” For the second prong, Spann must establish “the newly discovered evidence [is] of such nature that it would probably produce an acquittal on retrial.” 709 So. 2d at 521, and this “is met only where the defendant first establishes that the recanted testimony is truthful.”
The Court noted that “on reviewing the evidence presented both at trial and in postconviction, the trial court determined that Philmore’s recantation was ‘not credible, untruthful, and exceedingly unreliable.’” Because the trial court granted the evidentiary hearing request and “evaluated the reliability of the newly discovered evidence and the credibility of the defendant’s witness,” “the sole question before this Court is whether the trial court’s decision is supported by competent, substantial evidence.” See Lambrix, 39 So. 3d at 272. The Court affirmed the denial of relief finding competent and substantial evidence in the record supports “the trial court’s conclusion that Philmore’s recantation is untruthful.”
Assistant Attorney General Leslie Campbell represented the state.
[Spann v. State, 05/24/12]
Opinion:
First District Court of Appeal
Rehearing denied; motion to certify question of great public importance granted.
Gridine v. State, 1D10-2517. Opinion filed May 29, 2012.
In a per curiam decision, on Motion for Rehearing and Certification, the 1st DCA denied the motion for rehearing, however, it granted the motion to certify the following question of great public importance to the Florida Supreme Court:
- DOES THE UNITED STATES SUPREME COURT DECISION IN Graham v. Florida, 130 S. Ct. 2011 (2010), PROHIBIT SENTENCING A FOURTEEN-YEAR-OLD TO A PRISON SENTENCE OF SEVENTY YEARS FOR THE CRIME OF ATTEMPTED FIRST-DEGREE MURDER?
Assistant Attorney General Therese Savona represented the state.
[Gridine v. State, 05/29/12]
Opinion:
Second District Court of Appeal
Defense counsel should have objected to the request for the forcible felony instruction.
Santiago v. State, 2D10-5515. Opinion filed May 25, 2012.
Santiago was convicted of one count of first-degree murder, two counts of attempted first-degree murder, “two counts of aggravated assault on a law enforcement officer, one count of obstructing or opposing an officer with violence, and one count of aggravated fleeing or eluding.” Santiago’s sole defense to the murder and attempted murder charges was “he was acting in self-defense . . .” In Santiago’s original and amended postconviction relief motions he argued his “counsel was ineffective for failing to object to the State’s request for the forcible felony instruction.” Santiago contended that the “instruction was improper under the facts of his case because it negated his sole defense to the murder and attempted murder charges.” This particular claim was summarily denied by the postconviction court.
The facts revealed that back in July 2000, Santiago was involved in an altercation outside a nightclub with George Smith, Derrick Phillips, and Kevin Hayes. Earlier in the evening the three men had words with Santiago. When Santiago was in the parking lot of the club, the men confronted Santiago. Because of the earlier confrontation, Santiago was apprehensive of the three men. Santiago believed Phillips was reaching for a gun when he reached for the waistband of his pants. He feared for his life, pulled out his own gun and fired several shots. Hayes was shot and later died. Phillips was hit but survived. Police were called to the scene and while “fleeing the scene after the shooting, Santiago allegedly took some type of aggressive action towards two police officers who were responding to reports of the shooting.” He was apprehended shortly thereafter, a short distance from the scene. “Santiago’s sole defense to the murder charge and the two attempted murder charges was that he was acting in self-defense when he fired at Smith, Phillips, and Hayes.” The State requested the jury be given the “instruction on the forcible felony exception to self-defense.” Defense did not object. See opinion for actual instruction given.
The 2nd DCA went into great detail regarding the defendant’s right to have the jury instructed on his or her theory of defense, “a defendant’s right to have the jury consider the defense of self-defense when the defendant is engaged in a forcible felony at the time of the alleged self-defense,” and the forcible felony exceptions as provided for in section 776.041(1), Florida Statutes (2000). The 2nd DCA noted that because of the “uncertainty in the trial courts concerning the proper use of the forcible felony exception,” the Florida Supreme Court, in Martinez v. State, 981 So. 2d 449, 453-54 (Fla. 2008), set out an example for the proper application.
The 2nd DCA concluded that the limited record before them, the facts of the case, “do not show that Santiago was engaged in a separate and independent forcible felony at the time of the shooting.” He was leaving a nightclub when three men, whom he was having an ongoing dispute, approached him. He thought one was reaching for a gun so he armed himself and shot in self-defense. “Assuming these facts to be true, as we must at this stage of the postconviction proceedings, see Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011), Santiago's trial counsel should have objected to the State's request for the forcible felony instruction.”
The 2nd DCA reversed the summary denial of this claim and remanded for further proceedings. On remand the postconviction court may “attach portions of the record that conclusively refute Santiago’s claim or hold an evidentiary hearing on this issue.” The 2nd DCA affirmed the denial of his other claims.
Assistant Attorney General Katherine Coombs Cline represented the state.
[Santiago v. State, 05/25/12]
Opinion:
Fourth District Court of Appeal
Trial court erred admitting prior domestic violence; the prior bad act was unfairly prejudicial.
Harden v. State, 4D10-2615. Opinion filed May 23, 2012.
Harden appealed his convictions for sexual battery, false imprisonment, and domestic battery arguing “the trial court abused its discretion in admitting evidence of the prior act of physical violence towards K.W.”
Harden was accused of beating and raping his then-girlfriend, K.W. Before trial, the prosecutor notified the court he intended to question K.W. about her relationship with Harden and about “a prior domestic violence incident that occurred about six months before the alleged rape.” Defense counsel objected to the prior incident evidence on “grounds of relevance, prejudice, and lack of notice.” He further argued “that the standard was not merely whether there was relevancy, but whether the prejudice outweighed the probative value.” Relying on Nicholson v. State, 1- So. 3d 142 (Fla. 4th DCA 2009), the trial court “found that the evidence was admissible as probative of appellant’s motive and intent” and allowed the prior act evidence to be admitted at trial.
On appeal, the State claimed the issue was not preserved because “appellant raised only a ‘leading’ objection at trial when the prosecutor asked about the prior incident and because appellant did not specifically argue that the victim’s testimony was ‘evidence of other bad acts which served only to show propensity to commit crime.’”
The 4th DCA found the issue was preserved. While the magic word “propensity” was not used; “it is apparent that defense counsel’s articulated concern was sufficiently specific to inform the trial court of the alleged error.” Further, “defense counsel’s pretrial arguments were sufficient to preserve this issue for appellate review where the trial court made a definitive ruling on the record. See McWatters v. State, 36 So. 3d 613, 627 (Fla. 2010) (“Moreover, McWatters preserved his objection for review by obtaining a pretrial ruling on the admissibility of the evidence.”); § 90.104(1), Fla. Stat. (2009).
The 4th DCA determined that “the earlier incident of domestic violence did nothing more than demonstrate appellant’s propensity for violence against his girlfriend.”
- The primary contested fact in this case was whether appellant’s girlfriend consented to the sex; appellant’s motive or intent was not significant to any contested fact.
- The prior bad act was unfairly prejudicial because it was classic propensity evidence that showed appellant’s bad character. Furthermore, on this record, we cannot say that the error was harmless. See Goodwin v. State, 751 So. 2d 537, 547 (Fla. 1999) (erroneous admission of collateral crimes is presumptively harmful error).
Assistant Attorney General Richard Valuntas represented the state.
[Harden v. State, 05/23/12]
Opinion: