Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 05/01/2009
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
Statement obtained in violation of Messiah may be used to impeach a defendant whose testimony at trial is inconsistent with statement.
Kansas v. Ventris, 07-1356. Decided April 29, 2009.
At issue: Whether a criminal defendant’s voluntary statements made to a jailhouse informant—an inmate recruited by the police to surreptitiously obtain incriminating information—can be used at trial for purposes of impeachment, despite a conceded violation of his Sixth Amendment right to counsel.
Before trial, Ventris, who was charged with Rhonda Theel for murder and other crimes, admitted to shooting and robbing the victim. An informant, who was planted in his cell, heard the statement. At trial, Ventris testified that Theel committed the crimes. Over the objection of defense, the State was allowed to call the informant to testify to Ventris’s contradictory statement. Ventris was acquitted of felony murder and misdemeanor theft but was convicted of aggravated burglary and aggravated robbery. However, the Kansas Supreme Court reversed holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”
The Supreme Court held that “Ventris’s statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial.” Reversed and remanded for further proceedings.
Opinion:
Suppressed evidence was not material for first-degree murder conviction; however, lower court erred failing to assess cumulative effect of the suppressed evidence with respect to capital sentence.
Cone v Bell, 07-1114. Decided April 28, 2009.
At issue: Whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.
Cone, sentenced to death for the murder of two people, contended that the State of Tennessee (State) violated his right to due process by suppressing witness statements and police reports that would have corroborated his trial defense and bolstered his case in mitigation of the death penalty.” Cone’s insanity defense, that he suffered from “acute amphetamine psychosis, a disorder caused by drug addition,” was discredited by the State, who alleged his drug addiction was “baloney.” Cone discovered 10 years later, through a public records request, that “the State had suppressed evidence supporting his claim of drug addiction.” Cone’s new evidence presented in his postconviction relief petition was denied on the ground “that his Brady claim had been ‘previously determined,’ either on direct appeal from his conviction or in earlier collateral proceedings.” The Federal District Court denied Cone’s habeas petition concluding “the state courts’ disposition rested on an adequate and independent state ground that barred further review in federal court, and the Court of Appeals for the Sixth Circuit agreed.” The Supreme Court granted certiorari on the two issues listed above.
The Supreme Court concluded “the Tennessee courts’ rejection of petitioner’s Brady claim does not rest on a ground that bars federal review. Furthermore, although the District Court and the Court of Appeals passed briefly on the merits of Cone’s claim, neither court distinguished the materiality of the suppressed evidence with respect to Cone’s guilt from the materiality of the evidence with respect to his punishment.” The Supreme Court vacated the judgment of the Court of Appeals and “remanded to the District Court with instructions to give full consideration to the merits of Cone’s Brady claim.”
Opinion:
Nken v. Holder, 08-681. Decided April 27, 2009. Summary by SCOTUS.
By a 7-2 vote, the Court held that, in assessing whether to stay an alien’s removal pending consideration of his petition for review, appellate courts may apply “the traditional criteria governing stays.” The Court rejected the Government’s contention that such stay requests are governed by a section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which provides that “no court shall enjoin the removal of any alien pursuant to a final order . . . unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 U.S.C. §1252(f). The Court concluded that §1252(f) addresses injunctions and that, although “[a] stay pending appeal certainly has some functional overlap with an injunction,” a stay operates in a different manner and is generally not referred to as an injunction.
Opinion:
Opinion to Watch For:
Bobby v. Bies, 08-598. Oral Argument Held April 27, 2009. Summary by SCOTUS.
In Atkins v. Virginia (2002), the Supreme Court held that the execution of mentally retarded individuals violates the Eighth Amendment. On April 27, in No. 08-598, Bobby v. Bies, the Court considered whether double jeopardy protections apply to a state post-conviction hearing to determine a death-sentenced inmate’s mental competency under Atkins, when the state supreme court has previously referenced the inmate’s “borderline mental retardation.” Argument preview article may be viewed at: http://www.scotuswiki.com/index.php?title=Bobby_v._Bies
Transcript of Oral Argument:
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Actual Innocence claim fails to meet the two procedural gatekeeping requirements in § 2244(b)(2).
IN RE: Davis, 08-16009. Opinion filed April 16, 2009.
Davis, Georgia death-row inmate whose October 27, 2008, execution was stayed, sought permission to file “a second or successive 28 U.S.C. § 2254 federal habeas petition, raising for the first time a freestanding actual innocence claim.”
Davis argued, in his first habeas before the district court, “violations of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).” Because he did not bring these constitutional claims before the state court, he “sought to overcome his procedural default,” saying “under Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), that he should be able to raise these claims anyway because he was actually innocent of the underlying murder.” Reaching to the merits of his constitutional claims, the district court denied his petition.
Davis argued that “he was diligent in gathering the ‘new’ evidence underlying his Herrera claim because he brought this very evidence to the first federal habeas court.” The 11th Circuit noted that Davis, in his first federal habeas petition, did not bring a freestanding claim of innocence as described in Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 869 (1993), nor did he present any evidence in support of a Herrera claim. Instead, Davis brought constitutional claims of Brady and Giglio violations, along with an ineffective assistance of counsel claim in his first habeas petition. As such, the 11th Circuit concluded that “[h]e cannot now argue that by simply presenting the underlying evidence in his first federal habeas petition in support of wholly different constitutional claims -- without any accompanying Herrera claim -- he has satisfied the due diligence prong of the statute.” Davis even conceded that in support of his instant Herrera claim only the September 2008 affidavit of trial witness Benjamin Gordon, out of the “27 exhibits” submitted with his petition, satisfied the due diligence requirement.
The 11th Circuit held that Davis “completely failed to meet the procedural requirements of § 2244(b)(2).” While the September 2008 witness affidavit met the newly discovered evidence requirement, it “did not establish actual innocence.” Further, the 11th Circuit concluded that it does “not have the authority to grant petitioner leave to file successive petition on equitable grounds,” and even if it did, “Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today.”
[IN RE: Davis, 04/16/09]
Opinion:
First District Court of Appeal
Evidentiary hearing or record attachment required for ineffective assistance of counsel claim.
Washington v. State, 1D08-3246. Opinion filed April 24, 2009.
Washington, who pled guilty to burglary of a convenience with assault, appealed the denial of his 3.850 postconviction relief motion.
The record revealed that before commencement of his trial, Washington accepted “a last minute plea offer” and entered a guilty plea. The jury had already been selected and Washington was told if he did not accept the plea offer, the “trial could begin immediately.” In one issue, Washington alleged ineffective assistance of counsel for counsel’s failure to inform him, “prior to the entry of his plea, that the victim was not available to testify against him at trial.” Had he known this, he contends he would not have entered the plea and would have “insisted on going trial.” The trial court summarily denied this claim on the ground it was “completely speculative.”
The 1st DCA held the trial court “applied an improper standard” regarding the ineffective assistance of counsel claim. “Even if the assertion that the victim was not available to testify at the trial was speculative, as the trial court concluded, the court was required to accept it as true absent record evidence refuting the claim.” As such, “as to this issue only, we reverse and remand for either an evidentiary hearing or for record attachments conclusively refuting the allegation that counsel knew the victim was unavailable for the impending trial and neglected to tell Appellant.” The 1st DCA affirmed all other issues.
Assistant Attorney General Anne Conley represented the state.
[Washington v. State, 04/24/09]
Opinion:
Second District Court of Appeal
While trial court’s enhancement of offense to first-degree felony was improper, the error was harmless beyond a reasonable doubt.
Knight v. State, 2D08-2310. Opinion filed April 24, 2009.
Knight challenged the postconviction court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Knight claims his second-degree murder conviction was illegally reclassified from a second-degree felony to a first-degree felony because “the jury did not find he used a firearm in the commission of the attempted second-degree murder.”
The record revealed that Knight, after an argument over a bicycle, shot the victim in the back and then walked up to him and continued to shoot a total of eight times. The victim was rendered a paraplegic. Knight was charged with attempted first-degree murder, however, the jury found him guilty of the lesser offense of attempted second-degree murder. While the verdict form “did not reference a firearm,” the trial court enhanced the degree of the offense to a first-degree felony and sentenced Knight to thirty years. The enhancement was “pursuant to section 775.087(1), Florida Statutes (1993), and based on the evidence that Knight used a firearm in the commission of the offense.”
The trial court had twice considered and rejected this exact claim in a 3.850 motion and again in a 3.800(a) motion and the 2nd DCA affirmed the denial of both claims. “A defendant who has already had a rule 3.800(a) illegal sentence claim determined against him is collaterally estopped from relitigating the same claim except where the application of collateral estoppel would result in a manifest injustice.” Cillo v. State, 913 So. 2d 1233 (Fla. 2d DCA 2005).
The 2nd DCA determined that “[w]ithout a jury finding that the appellant used a firearm, the enhancement of the degree of the offense . . . to a first-degree felony was improper.” See, e.g., State v. Tripp, 642 So. 2d 728 (Fla. 1994). However, the 2nd DCA held that “even if the trial court erred when it enhanced Knight’s sentence, he is not entitled to relief because the error was harmless.” “No rational jury would have found that Knight did not use a firearm in his attempt to murder the victim.” Thus, the 2nd DCA held the error was harmless beyond a reasonable doubt.” Galindez v. State, 955 So. 2d 517, 523-24 (Fla. 2007). Further, the 2nd DCA concluded, “Knight did not demonstrate a manifest injustice and the postconviction court properly refused to consider his claim for a third time.”
[Knight v. State, 04/24/09]
Opinion:
Once suspect indicates desire to remain silent; interrogation must cease. Once suspect invokes Miranda rights; officers prohibited from engaging in words/actions that elicit an incriminating response.
Youngblood v. State, 2D08-372. Opinion filed April 22, 2009.
Youngblood, pled nolo contendere for trafficking in methamphetamine, and reserved his right to appeal the denial of his motion to suppress statements made during a videotaped interrogation by the officers.
The 2nd DCA held the trial court erred in failing to grant the motion to suppress the statements. “Because law enforcement officers did not cease communications with Mr. Youngblood after he invoked his right to counsel, but instead continued on a course designed to convince him to reconsider his invocation of his constitutional right in order to protect his girlfriend, we conclude that his subsequent decision to waive his right to counsel was involuntary.”
Assistant Attorney General Chandra Dasrat represented the state.
[Youngblood v. State, 04/22/09]
Opinion:
Third District Court of Appeal
Trial court erred; officer had reasonable suspicion for investigative stop. Evidence improperly suppressed.
State v. Arango, 3D07-2250. Opinion filed April 22, 2009.
State, sought review of the order granting Arango’s “motion to dismiss and the court’s earlier order granting defendant’s motion to suppress.”
Detective Vila, “trained in the identification of narcotics and dangerous drugs,” received an “anonymous tip advising him that marijuana was being cultivated at a particular residence.” He and another officer went to the residence, detected the odor of marijuana coming from the residence, and “returned to his car to prepare a search warrant for the residence.” While in the police vehicle, Arango drove onto the residence’s driveway, opened the garage door, entered the garage, spotted the detective, closed the garage door, went back to his vehicle and drove away. The detective testified that while the garage door was open, “he noticed an R-Max board and approximately two to five filled black garbage bags.” The officers followed and stopped Arango. As he approached the vehicle, the detective smelled the odor of marijuana coming from Arango’s vehicle, and observed “in the passenger seat, rolls of tape, one of which had marijuana residue and black trash bags on the floor of the passenger side.” The detective arrested Arango and Arango “invoked his Miranda rights.” Miranda v. Arizona, 384 U.S. 436 (1966). The officers returned to the residence, obtained a search warrant for the residence, and found a hydroponics lab. They seized 88.4 pounds of marijuana, including a bag found in the refrigerator, along with several other items (beer bottles, cigarette butts, and fingerprints). The trial court granted Arango’s suppression motion as to: “1) the investigative stop and any evidence obtained pursuant to the stop, 2) statements made by the defendant after he was arrested and invoked his Miranda rights, 3) beer bottles and any further evidence obtained from the beer bottles, 4) cigarette butts, 50 fingerprints obtained from walls or other items not authorized by the warrant, and 6) anything recovered from the refrigerator.” Arango then filed a motion to dismiss “stating, in part, that the evidence against the defendant had been significantly diminished as a result of the motion to suppress,” the trial court granted the motion, and the State appealed.
Section 901.151(2), (Fla. Stat. (2005), “merely requires that Vila had encountered the defendant ‘under circumstances which reasonably indicate[d] that such person has committed, is committing, or is about to commit a violation of criminal laws of this state . . .’” The 3rd DCA concluded “the circumstances under which Vila encountered the defendant were sufficient to satisfy this requirement.” “Given the cumulative facts to which Vila testified, Vila had reasonable suspicion to conduct an investigative stop of the defendant.” The 3rd DCA held that the evidence obtained from the result of that stop was improperly suppressed.
The 3rd DCA found the evidence obtained from the residence (beer bottles, cigarette butts, and fingerprints), “but not specifically set forth in the search warrant” were properly seized and cited to several cases in support of its findings. The officers “could reasonably believe that these items would be ‘useful as evidence of a crime’ and assist in ascertaining the identities of the individuals growing marijuana at the residence.” Further, “[o]nce the officers searched the refrigerator and discovered marijuana, they were authorized by the warrant to seize the contraband.”
Regarding the trial court’s suppression of Arango’s statements made after he invoked his Miranda rights, the 3rd DCA concluded “it was unclear whether the court did so because it deemed the investigative stop illegal or whether the court found that the officers initiated conversation with the defendant.” The 3rd DCA reversed the suppression of the post-Miranda statements and remanded so “the court may consider witness testimony from officer(s) and/or defendant and rule on this issue in light of our finding that the investigative stop was proper.”
Finally, the 3rd DCA reversed the trial court’s order of dismissal.
Assistant Attorney General Michael Greenberg represented the state.
[State v. Arango, 04/22/09]
Opinion: