Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 03/04/2010
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
Rigterink remanded to Florida Supreme Court for further consideration in light of Powell.
Florida v. Rigterink, 08-1229. Decided March 1, 2010.
On Petition for Writ of Certiorari to the Supreme Court of Florida, the United States Supreme Court held the following: “The motion of respondent for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Florida for further consideration in light of Florida v. Powell, 559 U.S. __ (2010).”
Assistant Attorney General Scott Browne represents the state.
Decision:
Certiorari Granted:
Title: Michigan v. Bryant. Granted March 1, 2010.
Docket: 09-150
Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?
Certiorari Denied:
No review of execution procedure; Test of lethal injection. Summary by Lyle Denniston @ SCOTUS.
Harbison v. Little (09-7777). Denied March 1, 2010.
The Supreme Court refused to reopen the issue of the constitutionality of the procedures that states use to carry out death sentences by lethal injection. Without comment or noted dissent, the Court turned aside a new petition by a Tennessee inmate seeking a ruling that lower courts must make a detailed examination of a state’s injection protocol in order to determine whether it causes unnecessary pain before death occurs.
The petition filed by lawyers for Edward Jerome Harbison argued that lower courts have been upholding other states’ lethal injection procedures by making a simple finding that they are similar to the methods the Supreme Court upheld in a Kentucky case two years ago (Baze v. Rees). The Harbison appeal also argued that, on closer examination, Tennessee’s procedure fails to assure that the inmate will be completely unconscious and thus will does not prevent excruciating pain during the three-drug protocol in use in that state.
McCane v. U.S. (09-402). Certiorari denied March 1, 2010.
The Court also refused to review a new case that might have provided a vehicle for re-examining the so-called “exclusionary rule,” which has come under some sharp criticism among the Justices. The case specifically sought to challenge the scope of what is called the “good faith” exception to the rule that evidence obtained in an illegal police search may not be used in a criminal trial. Under the “good faith” exception, such evidence may be used if police genuinely believed their search was legal, at the time of the search. The new appeal sought to test whether the exception applies, if police made a search based upon their authority under a court ruling that later was overruled by the Supreme Court.
In the McCane case, Oklahoma City police searched a car they had stopped for a traffic violation, and found a pistol hidden in a pocket of the car door. The police based their search on the Supreme Court’s 1981 ruling in New York v. Belton. But, while the McCane case was pending in lower courts, the Supreme Court ruled in Arizona v. Gant that lower courts had been applying the Belton precedent too broadly to justify police searches. In the McCane case, the Tenth Circuit then ruled that, while the search of the car was invalid under the Gant decision, police were entitled to rely upon Belton when they conducted the search at issue.
Other Cases Denied:
Title: Ozuna v. United States. Certiorari denied March 1, 2010.
Docket: 09-293
Issue: Whether a litigant moving to re-open a suppression hearing to introduce additional evidence must justify his failure to introduce that evidence at the initial hearing.
Title: West v. Bell. Certiorari denied March 1, 2010.
Docket: 09-461
Issue: Whether trial counsel’s failure to investigate and present evidence at sentencing of the severe abuse suffered by the defendant as a child can be dismissed on the basis of unsupported conjecture by the court of appeals that the jury might have concluded that “violence begets violence” and might have “despised [the defendant] and sentenced him to death with greater zeal,” leaving the court able only to “speculate” what effect the evidence actually would have had, and thereby foreclosing a conclusion that the defendant was prejudiced by counsel’s failure to present the evidence.
Florida Supreme Court
Case reversed and remanded for new trial; police officer improperly volunteered his opinion of truthfulness of state’s key witness.
Tumblin v. State, SC07-2111. Opinion filed February 25, 2010.
On direct appeal, Tumblin appealed his conviction of first-degree murder and death sentence raising three issues: (1) whether the trial court erred in letting Lieutenant Smith, a senior police officer, testify to Anthony Mayes’ prior consistent statement; (2) whether the trial court abused its discretion in denying Tumblin’s motion for mistrial when Lieutenant Smith testified that he told another officer that Anthony Mayes would tell him the truth; and (3) whether the trial court reversibly erred in failing to conduct a proper hearing pursuant to Richardson v. State, 246 So. 2d 771 (Fla. 1971), after the State failed to disclose that Jean Nicole Ruth had recently been shot in an unrelated incident and was taking hydrocodone medication at the time of her testimony.
The Court determined “sufficient competent, substantial evidence supports the jury’s verdict and the judgment of conviction for first-degree murder.” The Court also determined that “Mayes’ prior consistent statement in this case was admissible under section 90.801(2)(b), Florida Statutes (2008).” The Court determined that “the trial judge did not abuse its discretion when it allowed Smith to testify about Mayes’ prior statement, which was consistent with Mayes’ trial testimony.” The record also revealed that on direct examination, Lieutenant Smith, “immediately after Smith recounted Mayes’ prior consistent statement to the jury,” was asked if he added anything or suggested anything to Mayes that “he should say in the future?” Smith responded: “- - no, nothing in particular that he should say. I did assure Detective Coleman in front of Mayes that I felt like Mayes would – would tell him the truth.” (Emphasis added.) An objection was made and the trial court struck the comment. The trial court denied the motion for mistrial and a curative instruction was given later.
“[A]llowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’s credibility.” Seibert v. State, 923 So. 2d 460, 472 (Fla. 2006)(quoting Knowles v. State, 632 So. 2d 62, 65-66 (Fla. 1993)). The Court reversed and remanded for a new trial.
- Because Lieutenant Smith improperly volunteered testimony that essentially vouched for Mayes’ credibility in a manner that tied his credibility both to the version of events Mayes gave to officers prior to trial and to the same version of events he gave the jury during trial, we conclude that Tumblin did not receive a fair trial. Although the trial court correctly recognized the error, struck the testimony, and later gave a curative instruction, these corrective measures could not erase the inescapable impression upon the jury that Lieutenant Smith believed the version of events testified to by Mayes was truthful.
Assistant Attorneys General Lisa-Marie Lerner and Leslie Campbell represented the state.
[Tumblin v. State, 02/25/10]
Opinion:
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 35, Number 8, February 26, 2010.
Shenfeld v. State, 14 So. 3d 1021 (Fla. 4DCA 2009). Supreme Court Case No. SC09-1395 (Shenfeld v. State). Order dated February 23, 2010. No oral argument. Criminal law—Sentencing—Probation revocation—Ex post facto laws—Retroactive application of amendment to section 948.06(1)(d), Florida Statutes (2007), which provides for tolling of probationary period, does not constitute ex post facto violation, where statutory charge is procedural in nature because purpose and effect of amendment was to toll probationary period in order to allow the violation of probation to be heard—Because retroactive application of statute does not violate prohibition against ex post facto laws, trial court had jurisdiction to revoke defendant’s probation and sentence him—Conflict certified—Error to sentence defendant to fifteen years in prison after he had received a true split sentence of five years—When revoking the probation of a defendant who has received a true split sentence, a sentencing judge may not order new incarceration that exceeds any remaining balance of suspended incarceration portion of original sentence, less credit for time served—Based on original suspended sentence of five years in prison, maximum sentence defendant could receive was five years for violating terms of his probation.
First District Court of Appeal
Defendant’s claim he was incompetent was facially sufficient; reversed and remanded for evidentiary hearing on claim.
Jackson v. State, 1D09-4031. Opinion filed February 18, 2010.
Jackson appealed the denial of his 3.850 postconviction relief motion raising three claims. The 1st DCA affirmed grounds one and two without discussion. However, the 1st DCA held that “appellant’s claim that he was incompetent to enter a plea and that counsel was ineffective for failing to investigate the appellant’s competency or request a competency determination is facially sufficient.”
Jackson asserted he was incompetent; did not understand the consequences of his plea; had a history of mental illness; and had not taken his medications for schizophrenia. He also asserted that at the time of his plea he told his counsel that he was suffering from delusions and hearing voices.
The 1st DCA noted that the plea colloquy, attached to the motion, “does not refute the appellant’s claim as the appellant’s mental competency was never addressed.” Thus, the 1st DCA reversed and remanded for an evidentiary hearing on this claim.
Bureau Chief Trisha Meggs Pate represented the state.
[Jackson v. State, 02/18/10]
Opinion:
Second District Court of Appeal
Language in trial court’s order confusing; reversed and remanded for trial court to reconsider motion for new trial using proper standard.
Collett v. State, 2D08-5645. Opinion filed February 26, 2010.
Collett challenged his judgments and sentences for armed burglary of a structure, battery, and aggravated assault with a deadly weapon, asserting “the trial court applied the incorrect legal standard in evaluating whether the verdict was contrary to the law or weight of the evidence.” “Specifically, Collett argues that the trial court employed the standard for a motion for judgment of acquittal – sufficiency of the evidence – rather than the standard required for a motion for a new trial – weight of the evidence.”
The record revealed that Collett entered a home with a handgun in the middle of the night, threatened the occupants, “specifically grabbing and pointing the gun at one victim.” At trial, several witnesses identified Collett as the man who entered the home, and “the BB-pistol that Collett surrendered to police upon his arrest was identified as the gun he brandished while threatening the victims.” Collett testified he was in the home but denied possessing a gun. Following his conviction, defense counsel moved for a new trial “alleging the verdicts were contrary to the weight of the evidence because the evidence failed to support the finding that he used a deadly weapon.” The witnesses described the gun as small. Collett alleged their description “did not match the dimensions of the BB-pistol, a gun designed to look like a 9mm handgun.” Collett argued that “[w]ithout the BB-pistol,” “there was no evidence that a deadly weapon was used.” The motion for new trial was denied and the trial court made the following findings:
In regard to the issue surrounding the firearm or gun,
dangerous weapon, deadly weapon—dangerous weapon, I
guess, I believe that there is sufficient evidence that
supports the verdict. The jury is the tryer [sic] of fact and
they listened to all the evidence and they wade through that
and they can believe or disbelieve all or any part of the
testimony. I don't know what they believed or disbelieved,
but I know that they reached a unanimous verdict and
returned that verdict. So as to that, I deny the motion for
new trial.
The 2nd DCA determined that the “State presented sufficient evidence to overcome a motion for judgment of acquittal and allow the jury to reach a verdict on Collett’s charges.” However, “Collett raised this evidentiary issue in the context of a motion for new trial, which requires the trial court to consider ‘whether the evidence presented was adequate to support a conviction.” Noting there are no “magic words” that have to be used when ruling on a motion for new trial, the 2nd DCA concluded it was “unable to ascertain, as a matter of law, whether the trial court utilized the improper standard as is suggested by the language used in its order, or merely used improper wording while actually applying the correct standard.” The 2nd DCA reversed and remanded for the trial court to “reconsider the motion for new trial using the proper standard.”
Assistant Attorney General Jonathan Hurley represented the state.
[Collett v. State, 02/26/10]
Opinion:
Fourth District Court of Appeal
“. . . existence of probable cause is not susceptible to formulaic determination. Rather, it is the ‘probability, not a prima facie showing, of criminal activity [that] is the standard of probable cause.’” Doorbal v. State, 837 So. 2d 940, 952–53, (Fla. 2003).
State v. Abbey, 4D09-88. Opinion filed February 24, 2010.
On Motion for Rehearing, the State appealed “the trial court’s order granting defendant’s motion to suppress evidence seized after execution of a search warrant.” This was a vehicular homicide prosecution and the trial court found “that the affidavit and application for a search warrant for the ‘black box’ from the defendant’s vehicle lacked sufficient facts to establish probable cause for issuance of the warrant.”
The record revealed Detective John Grimes of the Broward County Sheriff’s Office, investigated an accident where Joseph Hatton died as a result of the injuries he sustained after defendant’s vehicle collided with Hatton’s vehicle. Detective Grimes filed a “General Affidavit and Application for Search Warrant for the sensing and diagnostic module (SDM) (also known as a ‘black box’) from the defendant’s vehicle.” The officer “alleged in his affidavit that his investigation ‘reveal[ed] that [the defendant] . . . was traveling well in excess of the [40-m.p.h.] posted speed limit.’” The officer stated that
- the “[p]ost impact distance traveled by both vehicles was greater than one hundred twenty five feet. There were no pre impact tire marks, suggesting that no braking took place before impact. Post impact tire marks along with physical evidence on scene suggest that [the defendant’s] vehicle was traveling in excess of 70 [m.p.h.].” The affidavit further reported that an eyewitness “stated that she heard the tires on the vehicle that [the defendant] was driving ‘chirp’ as the vehicle was changing into a faster gear.”
The trial court granted the suppression motion and concluded that “the general affidavit and application for search warrant did not contain specific and sufficient facts to establish probable cause that a crime had been committed and that the evidence of that crime would be found in the defendant’s vehicle. Speed alone was insufficient.”
In its lengthy analysis, the 4th DCA discussed the “task of the issuing magistrate” and also noted that “where the issuance of a search warrant based on a probable cause affidavit is at issue, the standard of review is not de novo, but rather a standard of ‘great deference.’” The “issuing magistrate’s duty ‘is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.’” There are two elements that must be proven in the affidavit for the magistrate to determine that probable cause exists when issuing a search warrant:
- (1) the commission element—that a particular person has committed a crime—and (2) the nexus element—that evidence relevant to the probable criminality is likely to be located at the place searched. State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006) (citing Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003)) (emphasis added).
The 4th DCA determined the detective’s affidavit presented enough facts “for the magistrate to make a practical, common-sense decision, based on the circumstances set forth in the affidavit, that the defendant committed the alleged crime (the commission element) and that ‘evidence relevant to the probable criminality [of vehicular homicide was] likely to be located at the place searched’ – the Corvette’s black box (the nexus element).” See Vanderhors, 927 So. 2d at 1013. Thus, the 4th DCA held that the magistrate properly issued the search warrant and reversed the trial court’s order suppressing the evidence.
Assistant Attorney General Heidi Bettendorf represented the state.
[State v. Abbey, 02/24/10]
Opinion: