Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 03/15/2011
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
Skinner v. Switzer, 09-9000. Summary by Dan Schweitzer at NAAG.
By a 6-3 vote, the Court held that a convicted prisoner seeking access to biological evidence for DNA testing, and who asserts that the state’s post-conviction DNA statute violates the Due Process Clause, may assert that claim in a civil rights action under 42 U.S.C. §1983. The Court ruled that because the suit for DNA testing, if successful, would not “necessarily imply” the invalidity of his conviction ― since success would only require testing, which may or may not prove exculpatory ― it does not have to be brought through a habeas corpus action.
Decision:
Wall v. Kholi, 09-868. Summary by Dan Schweitzer at NAAG.
The Court unanimously held that a motion to reduce sentence under Rhode Island law ― which permits a court to reduce a sentence if, among other reasons, the court concludes it was too severe ― is form of collateral review that tolls AEDPA’s one-year limitations period on filing federal habeas petitions. The Court reasoned that “the phrase ‘collateral review’ in 28 U.S.C. §2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review,” and “the parties agreed that a motion to reduce sentence under Rhode Island law is not part of the direct review process.”
Decision:
Certiorari Denied:
Title: McNair v. US – Certiorari Denied
Docket: 10-533
Issue(s): Whether the Government must prove that a defendant had the specific intent to engage in a quid pro quo to convict him of bribery under 18 U.S.C. § 666.
Title: Idaho v. Shackelford – Certiorari Denied
Docket: 10-589
Issue(s): (1) Whether the Idaho Supreme Court erred in concluding that errors under Ring v. Arizona, requiring statutory aggravating factors to be found by a jury, are not subject to harmless error analysis; and (2) whether the state met its burden of establishing beyond a reasonable doubt that any Ring error involving the failure to instruct the jury regarding the multiple murder aggravator was harmless, based on the evidence presented at trial and the jury’s verdict that Shackelford was guilty of two murders.
“Petitions to Watch.” Summaries @ SCOTUS.
Some of the petitions up for consideration at the Justices’ private conference on March 18, 2011.
Title: Maples v. Allen (Re-listed)
Docket: 10-63
Issue(s): (1) Whether the Eleventh Circuit properly held that the purported state procedural default rule is “adequate” as a matter of federal law to bar federal habeas review of serious constitutional claims and (2) whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
Title: Huber v. New Jersey Dept. of Environmental Protection (Re-listed)
Docket: 10-388
Issue(s): (1) Whether the evidence obtained by the New Jersey Department of Environmental Protection during an unannounced, warrantless inspection of wetlands in the backyard behind petitioners' home, over their repeated objections, should be suppressed because it was obtained in violation of the Fourth Amendment; (2) whether the Fourth Amendment entitles petitioners to greater protection from warrantless searches and seizures on their residential property than a closely regulated business, even when their property contains regulated wetlands; (3) whether the warrantless inspection and seizure of soil samples at petitioners' property was valid under the “special public needs” exception to the warrant requirement; and (4) whether residents lose the right to be free from warrantless inspections of their property due to the presence of regulated wetlands.
Title: Philip Morris USA Inc. v. Jackson (Re-listed)
Docket: 10-735
Issue(s): Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members' individual claims.
Title: Al-Odah v. United States
Docket: 10-439
Issue(s): (1) Whether the Federal Rules of Evidence and 28 U.S.C. § 2246 limit the admissibility of hearsay in a habeas corpus case challenging indefinite imprisonment, potentially for life; (2) whether a preponderance of the evidence standard, rather than a clear and convincing evidence standard, is sufficient under the Due Process Clause of the Constitution and 28 U.S.C. § 2241 to support a ruling in favor of indefinite imprisonment, potentially for life.
Title: Felkner v. Jackson (Re-listed)
Docket: 10-797
Issue(s): Whether a ruling by the court of appeals on habeas, reversing a district court's decision and finding a state prosecutor's proffered race-neutral bases for peremptorily striking two out of three African-American jurors insufficient, satisfies the restrictions on habeas corpus relief imposed by Congress in 28 U.S.C. § 2254(d)?
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Defendant fails to meet prejudice prong; district court did not err denying habeas petition.
Rose v. Secretary DOC, 10-11848. Decided March 4, 2011.
Death row inmate, Rose, appealed the denial of his § 2254 habeas petition arguing his “trial counsel was ineffective in the investigation and presentation of mitigation evidence at the penalty phase.”
Rose brutally murdered the victim by “repeatedly smashing his head with a concrete block.” There were several witnesses and Rose even admitted to two acquaintances that he killed the victim. Rose told his roommates he killed the victim “simply ‘[be]cause I was angry at him.’” Rose went through a few attorneys and the record established he was a “difficult client.”
The 11th Circuit noted that Rose “must show both (1) ‘that [his] counsel’s performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Further, when “determining whether the prejudice prong is satisfied, ‘we consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation.’” Porter v. McCollum, 558 U.S. --, 130 S. Ct. 447, 453-54 (2009).
The 11th Circuit stated that “[w]e need not reach the issue of Rouson’s performance because we conclude that, even assuming arguendo that Rouson’s performance was objectively unreasonable, the total mitigation evidence Rose proffers (in the penalty phase and the 3.850 evidence), viewed against the total aggravating circumstances, does not raise a reasonable probability of a different result.” In its analysis, the 11th Circuit found that “much of the evidence that Rose contends should have been presented was in fact already presented at the penalty phase.” The 11th Circuit determined that “Rose has not carried his burden to show a reasonable probability that he would have received a different sentence had Rouson investigated and presented evidence Rose contends he should have. Our confidence in the outcome has not been undermined.” Rose has not shown any prejudice. The 11th Circuit affirmed the denial of Rose’s habeas petition.
Assistant Attorney General Carol Dittmar represented the state.
[Rose v. DOC, 03/04/11]
Opinion:
Florida Supreme Court
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 36, Number 10, March 11, 2011.
REVIEW GRANTED
Cases in which the Supreme Court of Florida has granted review. Subject matter is taken from Florida Law Weekly headnotes and may not directly reflect issues for review.
AKIEN v. STATE, 44 So.3d 152, 35 Fla. L. Weekly D1836a (Fla. 4DCA 2010). Supreme Court Case No. SC10-1837 (Akien v. State). Order dated March 4, 2011. No oral argument. Criminal law--Evidence--Hearsay--No error in admitting as excited utterance victim's telephone call to 911 to report assault where seventeen-year-old victim called 911 operator soon after being raped for thirty to forty-five minutes and record does not clearly refute contention that victim spoke to 911 operator under stress of excitement caused by rape--Even if admission of 911 tape was in error, error was harmless where state has proved beyond reasonable doubt there is no reasonable possibility that error contributed to conviction.
IN RE COMMITMENT OF PHILLIPS, __ So.3d __, 35 Fla. L. Weekly D2614a (Fla. 2DCA 2010). Supreme Court Case No. SC11-411 (State v. Phillips). Order dated March 8, 2011. Oral argument set by separate order. Criminal law--Sexually violent predators--Civil commitment under Jimmy Ryce Act--Prohibition--Jurisdiction--State does not have jurisdiction to initiate civil commitment proceedings under the Involuntary Civil Commitment of Sexually Violent Predators Act against an inmate who is entitled to immediate release based on a corrected award of gain time--Question certified--Incentive gain time already earned and calculated is properly included in determining whether defendant was lawfully in custody at time of commencement of commitment proceedings, as there is no basis for treating basic and incentive gain time differently in this context--State's commitment petition dismissed with prejudice.
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 36, Number 9, March 4, 2011.
REVIEW GRANTED
Cases in which the Supreme Court of Florida has granted review. Subject matter is taken from Florida Law Weekly headnotes and may not directly reflect issues for review.
CARBAJAL v. STATE, 28 So.3d 187, 35 Fla. L. Weekly D437a (Fla. 2DCA 2010). Supreme Court Case No. SC10-466 (Carbajal v. State). Order dated March 1, 2011. Oral argument set for May 4, 2011. Criminal law--Post conviction relief--Rule 3.850 motion alleging circuit court did not have jurisdiction to enter judgment and sentence was untimely where motion was filed more than two years after judgment and sentence became final--Rule makes no exception for motion claiming circuit court did not have jurisdiction to enter judgment and sentence--Conflict certified.
POLITE v. STATE, 41 So.3d 935, 35 Fla. L. Weekly D1574a (Fla. 5DCA 2010). Supreme Court Case No. SC10-1812 (Polite v. State). Order dated February 24, 2011. No oral argument. Criminal law--Evidence--Hearsay--Exceptions--Past recollection recorded--Claim that trial court erred in allowing state to read to jury the written statement of victim who was reluctant to testify because victim did not testify at trial that the written statement accurately reflected the facts she observed on the day of the offenses--Issue was not preserved for appellate review where defendant did not argue in trial court that foundation for admission of evidence of past recollection recorded may only be laid with testimony at trial from the declarant--Further, testimony at trial from the declarant is not required for the admission of such evidence--Statement was admissible so long as the state presented evidence from any source sufficient to support finding that statement was made when the matter was fresh in the witness's mind, and that it was accurate--Identification--Photographic lineup--There is no merit to defendant's contention that trial court abused discretion by admitting evidence of victim's out-of-court identification of defendant from photo lineup because state failed to inquire into this issue during direct examination of victim--It was sufficient that state opened door for cross-examination regarding topic of victim's out-of-court identification by asking her about it during direct examination.
First District Court of Appeal
Attorney representing capital defendant at state expense in collateral proceedings may also represent same defendant in non-capital case on pro bono basis.
Melton v. State, 1D09-5557. Opinion filed March 10, 2011. (NOTE: Further litigation likely.)
Melton appealed an “order prohibiting his lawyer from appearing on his behalf, and striking as unauthorized a motion for collateral relief that the lawyer had filed.”
At issue is whether Melton’s attorney, D. Todd Doss, in his capital case, could file a 3.850 postconviction relief motion in another, non-capital case. “With a view toward eliminating one of the aggravating factors relied on as justification for the death sentence and obtaining a new capital sentencing hearing,” Doss filed a postconviction relief motion, “alleging newly discovered evidence of innocence in another case, a case that had eventuated in a prior conviction that had been considered in the first capital sentencing.” The State filed a “Motion to Prohibit Registry Counsel from Representation and to Strike the Successive 3.850 Motion.” Even though Doss stated he would represent Melton in this matter without charge, the trial court agreed with the State finding that “State-appointed, capital counsel, whether from Capital Collateral Regional Counsel or from the private registry, may not represent a capital defendant in any proceeding except the capital proceeding for which the attorney has been appointed to represent him or her.” The trial court relied on section 27.711(11), Florida Statutes (2009), and State v. Kilgore, 976 So. 2d 1066 (Fla. 2007).
The 1st DCA found that “[w]hen read together with section 27.7002(4), however, section 27.711(11) merely prohibits registry counsel from representing a capital defendant in a non-capital proceeding at state expense.” “. . . the statute does not say—and Kilgore did not decide—that section 27.711(11) prohibits private attorneys from representing a capital defendant in a non-capital case on a pro bono basis.”
The 1st DCA reversed and remanded finding that “the same lawyer, acting pro bono publico, may represent a capital defendant in proceedings other than capital collateral proceedings without charge.”
Assistant Attorney General Charmaine Millsaps represented the state.
[Melton v. State, 03/10/11]
Opinion:
Fundamental error; jury not instructed on prescription defense.
Glovacz v. State, 1D09-1204. Opinion filed March 2, 2011.
Glovacz, convicted of trafficking hydrocodone, appealed raising “multiple claims of error.”
There was “evidence offered” that an undercover officer purchased a controlled substance from Glovacz. The police learned about Glovacz from a confidential informant. The officer, posing as a woman in chronic pain, contacted Glovacz, went to her home, and purchased some thirty tablets. Glovacz claimed she had a valid prescription for the medication and “raised an entrapment defense.” Glovacz “did not deny giving the undercover officer some of her medication, but claimed that she did not receive money therefor and instead expected the officer to give her back the same amount in a week or so when she obtained her own prescription.” Glovacz appealed her conviction and sentence. Glovacz “did not request that the jury be instructed that the possession of a prescription may be a valid defense to the charge of possession of a controlled substance.” The jury was instructed on possession as a lesser offense.
The 1st DCA looked at its recent decision in McCoy v. State, __ So. 2d __, 35 Fla. Law Weekly D2876 (Fla. 1st DCA 2010), “as instructive” and noted that McCoy was similar to the instant case. Glovacz claimed she had a valid prescription for hydrocodone and “the State did not offer any evidence to the contrary.” Also, “the jury was not instructed that possession of prescription is a valid defense . . . the lack of an instruction may be deemed fundamental error given the prosecutor’s suggestion here that possession could support a conviction for trafficking.” Based on the authority of McCoy, the 1st DCA reversed the conviction for trafficking in a controlled substance and vacated the sentence.
Assistant Attorney General Sonya Roebuck Horbelt represented the state.
[Glovacz v. State, 03/02/11]
Opinion:
Fourth District Court of Appeal
Consent for search was voluntary; under the circumstances, handcuffing defendant and placing him on the ground did not constitute unreasonable or unlawful conduct on the part of the police.
Gonzalez v. State, 4D09-3648. Opinion filed March 9, 2011.
Gonzalez appealed the denial of a motion to suppress evidence arguing “the trial court erred in finding that he voluntarily consented to a search of his home because he was handcuffed on the ground when the police officer obtained his consent.”
The record reveals that Gonzalez pled no contest to trafficking in cannabis and possession of drug paraphernalia and reserved his right to appeal his dispositive motion to suppress the evidence. There was conflicting testimony at the suppression hearing Detective’s Brown and Hansman testified they were “conducting surveillance on the defendant’s residence, based on an anonymous tip.” They were in plains clothes and made “contact with the defendant, his girlfriend, and her friend.” The front door was open and the detectives testified they smelled the odor of cannabis coming from the front door. They advised Gonzalez “they were narcotics detectives conducting an investigation,” handcuffed Gonzalez and placed him on the ground. Gonzalez told the detectives “there were cannabis plants in the house,” and consented to a search of the house. Gonzalez was picked up, placed in the police vehicle, his handcuffs were removed and he again gave “oral consent to enter” the house, and then signed the consent form. Other officer’s arrived and searched the home and “fifty-two cannabis plants” were found on the second floor. Gonzalez testified that “Detective Hansman put a gun to his head, told him to get down, and handcuffed him behind his back.” He testified “the police told him to sign the consent form or they would get a search warrant.” Gonzalez further testified “he only signed it because they threatened to arrest his girlfriend if he did not.” “The girlfriend corroborated the defendant’s testimony, but she said she did not hear the defendant give permission to search or see the police enter the house.” The trial court denied the suppression motion finding “defendant’s consent was freely and voluntarily given,” the girlfriend was not threatened, the detective did not draw his weapon, and that Gonzalez “was not threatened in any way, shape, or form with anything.” Gonzalez appealed.
The 4th DCA noted that the record reflected “the officer had sufficient facts to form the probable cause necessary to justify detaining or even arresting the defendant during their initial encounter.” The officer’s testimony was found credible regarding the smell of marijuana from defendant’s home. Further, “defendant’s spontaneous admission that he had cannabis plants growing inside the house furnished additional support for his seizure.” The 4th DCA found that “handcuffing the defendant and securing him on the ground under these circumstances did not constitute unreasonable or unlawful conduct on the part of the police.” There were “no other coercive or threatening circumstances present.” The 4th DCA found “the trial court did not err in finding that, based on the totality of circumstances, the defendant’s consent was voluntary, rather than mere acquiescence to police authority,” and affirmed the denial of the suppression motion.
Assistant Attorney General Joseph Tringali represented the state.
[Gonzalez v. State, 03/09/11]
Opinion:
Fifth District Court of Appeal
Trial court erred; per Ramirez a reasonable person in defendant’s situation would not have believed himself to be in custody.
State v. Perez, 5D10-1299. Opinion filed March 4, 2011.
The State appealed “an order suppressing Perez’s admissions to a detective made without the benefit of the warnings set forth in Miranda v. Arizona, 348 U.S. 436 (1966).”
The record revealed that eleven-year old I.W., told police that she and her thirteen-year old girlfriend went to Perez’s home and had sex with Perez’s friend, Jammal Bradley. I.W. also showed Detective O’Hern the location/home where the sexual encounter took place. The detective later returned to the location/home and “made contact with Perez” and “informed Perez he was investigating a sexual assault which was reported to have occurred in the home.” “O’Hern identified Bradley as the suspect in the assault and explained that he wanted to gather evidence and question Perez about his knowledge of the assault.” Perez requested his mother be present “for the interview” and called her at work. While waiting for his mother to come home, the detective and Perez “conversed casually while they awaited her arrival.” The mother never objected to the detective being in her home or interviewing her son. Both she and Perez “knew Bradley had been arrested for having sex with an underage female in their home.” The mother believed the detective was there to discuss Bradley’s involvement, not her son’s involvement. The mother was asked by the detective leave the room “because they were going to discuss sexual issues, a topic he asserted some people are uncomfortable talking about in front of their mothers.” The mother agreed and left. During his discussion with Detective O’Hern, “Perez admitted having sex with the second female.”
At issue was whether Perez was in custody when he made his admission. The 5th DCA noted that the resolution of that issue would involve looking “at the totality of the circumstances to determine whether a reasonable person in Perez’s position ‘would not feel free to leave or to terminate an encounter with the police.” Snead v. State, 913 So. 2d 724, 727 (Fla. 5th DCA 2005). The 5th DCA also noted the Florida Supreme Court, in Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999), “set forth four factors to consider in making this determination.”
The trial court believed “that O’Hern deceived Perez into believing he was investigating Bradley, when, in fact, he intended to investigate Perez’s conduct with the second female.” The 5th DCA determined that the trial court’s belief was not dispositive because 1) “it is unsupported by the record,” and 2) “even if the trial court’s belief were true, O’Hern’s purpose for questioning Perez is but one of the considerations identified in Ramirez.” O’Hern was invited into the home and the testimony indicated the questioning took place in a non-threatening manner. Another factor indicating that Perez was not in custody was the fact that “Perez was never confronted with evidence of his guilt.”
The 5th DCA noted that Detective O’Hern’s “failure to advise Perez he was free to end the conversation at any time” and the fact that O’Hern persuaded “Perez’s mother, whom Perez requested be present for the interview, to leave the room,” weighed in favor of finding Perez was in custody. “However, balancing all the facts in light of the four-part test in Ramirez leads us to conclude that a reasonable person in Perez’s situation would not have believed himself to be in custody.” The 5th DCA reversed the order suppressing Perez’s confession and remanded for further proceedings.
Assistant Attorney General Kristen Davenport represented the state.
[State v. Perez, 03/04/11]
Opinion: