Criminal Law Alert

Application for Stay of Execution is Granted

Schwab v. State, 07A383, Order entered November 15, 2007.

The Supreme Court granted the application for stay of execution of sentence of death for Mark D. Schwab, pending the “timely filing and disposition of a petition for a writ of certiorari.” If certiorari is denied, the stay will terminate automatically.

Presumably, the stay resulted because of the pending Baze v. Rees, 128 S. Ct. 34, amended, 128 S. Ct. 372 (2007), case where the Supreme Court granted certiorari (review of standard for cruel and unusual punishment regarding lethal injection). Baze is set for O/A January 7, 2008.

Order


Regardless of whether a petition for rehearing is filed or when such petition is denied, “a conviction becomes final for purposes of triggering the one-year limitations period of section 2255 when certiorari is denied.”

Drury v. USA, 07-12130, Opinion filed November 13, 2007.

Drury, a federal prisoner who was convicted in the United States District Court for the Southern District of Georgia, of using a facility in interstate commerce to effect a murder-for-hire scheme and of possessing a firearm in connection with the crime of violence, appealed the dismissal of his motion to vacate, filed pursuant to 28 U.S.C. § 2255, “as barred by the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), Pub. L. No. 104-132, 110 Stat. 1214 (1996).” The 11th Circuit granted a certificate of appealability (COA) on the issue of “whether the statute of limitations began to run when the Supreme Court denied Drury’s petition for certiorari or when it denied his petition for rehearing of the denial of certiorari.”

Drury’s petition for certiorari was denied by the Supreme Court on October 3, 2005. As per the AEDPA imposed one-year statute of limitations, Drury had until October 3, 2006, to file his § 2255 motion to vacate. In Clay v. United States, 537 U.S. 522, 527 (2003), the Supreme Court held that “[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” The 11th Circuit noted that the Supreme Court Rule 16.3, “Disposition of a Petition for a Writ of Certiorari,” provides: “Whenever the Court denies a petition for a writ of certiorari, . . . The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.” (emphasis added).

The 11th Circuit determined that when Drury’s certiorari petition was denied, his “conviction was final for purposes of the AEDPA’s limitations period.” The 11th Circuit held that “finality attaches when the Supreme Court denies a habeas petitioner’s petition for certiorari review,” which is “consistent with the Supreme Court’s decision in Clay.”

Opinion


Trial court erred; the errors that occurred in the guilt phase of the trial, when viewed cumulatively, constitute reversible error.

McDuffie v. State, SC05-587, Opinion filed November 21, 2007.

McDuffie, convicted and sentenced to death for the first-degree murders of Dawniell Beauregard and Janice Schneider, convicted and sentenced to life in prison for robbery with a firearm, and convicted and sentenced to fifteen years in prison for false imprisonment with a firearm, appealed his convictions and sentences raising ten issues.

The record revealed that Beauregard and Schneider, employees of Dollar General, were found shot to death in the back of the store after the store closed. Beauregard had been bound with duct tape on her hands and feet, while no duct tape had been used on Schneider. The store’s receipts for that day, cash in the amount of $4,946.17 and checks totaling $1,467.76, along with the bank bag and the murder weapon were never recovered. McDuffie, recently hired as an assistant manager of Dollar General, had been training at this store, but had already given notice that he had accepted another position with Coca-Cola and would finish out the week with Dollar General. The only physical evidence linking McDuffie with the murders was “a partial palm print matching the upper portion of McDuffie’s right hand, which was found on a reconstructed strip of Dollar General duct tape taken from around Beauregard’s wrists.” There was no “hair, fiber, or DNA” found to connect McDuffie to the murders. McDuffie’s “dire financial condition” was supported by the evidence that his car had been repossessed; he had been unemployed for a month; he had recently been evicted from the residence he rented; he owed back & current rent; and he was hounded by creditors. Evidence was also produced that McDuffie purchased three money orders, the day after the murders, totaling $1,450 which was used as the rent and security deposit on his new rental unit.

McDuffie argued the trial court erred by failing to “conduct an adequate inquiry under Richardson v. State, 246 So. 2d 771 (Fla. 1971), regarding a defense discovery violation and by excluding witness Wiggins’ testimony and exhibit.” To rebut the State’s theory that McDuffie was “desperate over his poor financial condition,” the defense called Anthony Wiggins, a friend of McDuffie for approximately ten years, to testify he had sent McDuffie two Western Union money transfers; that several individuals had lent McDuffie money in mid-October; and that these loans could account for the money found on McDuffie. Wiggins also produced a $40 Western Union transfer receipt on the day he testified. The State objected to the testimony arguing that Wiggins was only listed as a penalty-phase witness (not a guilt phase witness) and they had no time to verify the receipt. The defense offered to call Wiggins at a later time but the prosecutor responded that he was sure that he could “probably deal with it at this point and time. But the problem is it is a surprise.” The trial court held that the defense committed a Richardson violation, that the State was prejudiced and excluded Wiggins’ testimony and the Western Union receipt.

The record revealed that the trial court did not perform an “adequate inquiry” into the Richardson violation. While the defense explained that Wiggins’ name was inadvertently not listed as a guilt-phase witness, the trial court never found the violation “to be willful and never inquired into whether the violation was substantial or trivial.” A limited inquiry was made as to whether the State would be prejudiced but the State never asserted it would “suffer any substantial procedural prejudice if Wiggins were allowed to testify.” The Court determined that the trial court could have explored alternative remedies, such as a brief delay to depose Wiggins, or postpone Wiggins’ testimony for a later time. Because the prosecutor stated that he could deal with the witness, the trial court’s failure to “consider less extreme alternatives is of even greater significance,” and the Court held that “the trial court erred when it failed to conduct an adequate Richardson inquiry and excluded the testimony of the defense witness without considering less extreme alternatives.”

After a lengthy analysis of McDuffie’s issues on the limitation on cross-examination of witnesses Alex Matias and Carol Hopkins, the David Pederson voice mail testimony, and the sufficiency of the evidence presented, the Court concluded “that the errors that occurred in this case, when viewed cumulatively, cannot be considered harmless beyond a reasonable doubt.” The Court reversed McDuffie’s convictions and sentences and remanded for a new trial.

Assistant Attorney General Barbara Davis represented the state.

Opinion

“CCRC is not authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction that was used as an aggravator in support of a sentence of death.”

State v. Kilgore, SC06-1763, Opinion filed November 21, 2007.

Kilgore was serving two life sentences for the 1978 first-degree murder, kidnapping, and trespassing with a firearm convictions, when in 1994, he was charged, convicted and sentenced to death for the murder of an inmate in the Polk County Correctional Institution. The State used the 1978 first-degree murder conviction as an aggravator to justify the death sentence during the penalty phase, along with having the female victim from the 1978 case testify against Kilgore. The Court affirmed Kilgore’s conviction and sentence of death on direct appeal.

The Office of the Capital Collateral Regional Counsel (CCRC) was appointed to represent Kilgore to collaterally challenge the 1994 murder conviction and death sentence. During the public records phase of the 1994 case, CCRC obtained notes from the 1978 interviews of the kidnapping victim that “allegedly revealed substantial impeachment material sufficient to give rise to a claim under Brady v. Maryland, 373 U.S. 83 (1963),” and had never been turned over to Kilgore. CCRC, believing it had substantial grounds to challenge the aggravator used to justify the death sentence, “sought to vacate the 1978 conviction based upon the holding in Brady requiring disclosure of exculpatory evidence, including impeachment evidence.” The Circuit Court granted the States motion to bar CCRC from representing Kilgore in the 1978 case. Kilgore appealed and the 2nd DCA converted the appeal to a proceeding in certiorari, quashed the lower court’s decision; remanded the case for further proceedings; and certified the following question: “Are counsel appointed to provide collateral representation to defendants sentenced to death, pursuant to section 27.702, authorized to bring proceedings to attack the validity of a prior first-degree murder conviction that was used as a primary aggravator in the death sentencing phase?”

The Florida Supreme Court held that “CCRC is not authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction that was used as an aggravator in support of a sentence of death.”

Senior Assistant Attorney General Katherine Blanco represented the state.

Opinion

Right to conflict-free counsel was not violated because defendant failed to show that a conflict of interest existed.

Stephens v. State, SC05-1301 and SC06-1729, Opinion filed November 15, 2007.

Stephens appealed the circuit court’s order denying his 3.851 motion to vacate his sentence of death alleging ineffective assistance of counsel during the penalty and guilt phase of the trial. Stephens also alleged that trial counsel “was operating under a conflict of interest.”

Stephens alleged his penalty phase counsel was ineffective for “failing to discover and present a wealth of mitigation,” such as his drug use, the time he set his neighbor’s house on fire and the time he accidentally shot his brother. Penalty phase counsel testified at the evidentiary hearing that his strategy was to present a “good guy” image of Stephens. To portray a “loving, cheerful, and bright person who came from a loving family and who was good with children.” Because the case involved the death of a child, counsel testified that this “image was especially important,” and that his strategy was to “humanize Stephens” by calling family and friends to testify to this image. Counsel hoped the jury would render a life sentence. Counsel testified that he believed the evidence of Stephens’ drug use and other incidents from his past “went against his strategy to portray Stephens as a good guy” and he did not consider those incidents as mitigation. The Court agreed with the trial court’s decision that counsel was making a “strategic decision to focus on the humanization of Stephens through lay testimony,” and held that counsel “cannot be deemed ineffective for such action.”

Regarding the “conflict of interest” claims, Stephens alleged that his counsel’s representation of Sammie Washington, a co-defendant on the 1992 burglary conviction, created a conflict because it “precluded counsel from calling Washington as a witness or taking a position adversarial to Washington in challenging the conviction.” Counsel testified at the evidentiary hearing that he made a “strategic decision not to challenge the conviction,” that he didn’t even remember representing Washington, however, during his investigation into the 1992 burglary conviction, “he did not learn anything that would have assisted him in attacking the conviction.” He also believed that if he tried to introduce the evidence, in an attempt to “lessen the weight of the aggravator,” that it would backfire. The Court determined that Stephens did not “point to any evidence that Washington’s testimony would have been beneficial in rebutting the conviction,” and held the trial court properly denied relief on this claim.

Stephens also alleged that his “right to conflict-free counsel was violated,” because his counsel also represented Horace Cummings, the co-defendant in the instant case. The record revealed that Cummings was represented by a different attorney. The Court held that Stephens failed to show an actual conflict of interest existed and the trial court properly denied relief on this claim.

In his habeas petition, Stephens alleged that the “aggravating circumstance and jury instruction for a ‘victim under 12 years of age’ is unconstitutionally overinclusive, arbitrary, and automatically applicable to homicides committed regardless of the circumstances.” The Court held that this claim was not preserved because Stephens did not object to the constitutionality of this aggravator at trial. Further, the claim was without merit because the record proves that the child was three years and four months of age at the time of the murder. After a lengthy review of the record, the Court denied the petition for a writ of habeas corpus.

Assistant Attorney General Meredith Charbula represented the state.

Opinion


In RE: Amendments to Florida Rules of Appellant Procedure - Rule 9.141 and Rule 9.142.

SC07-1662, Filed November 15, 2007.


Amendments


Question of fact; the jury must determine whether an object, not ordinarily considered a weapon, has been used “in a manner likely to cause death or great bodily harm.”

Smith v. State, 1D06-5319, Opinion filed November 15, 2007.

Smith, convicted of aggravated battery with a deadly weapon, appealed the denial of his motion for judgment of acquittal arguing that the state “failed to provide any evidence that the bleach was a deadly weapon,” and that the state did not provide “expert testimony regarding how bleach affected the body or that it was likely to cause death or great bodily harm.”

The record revealed that the victim worked for Smith doing “odd jobs.” After helping Smith make a delivery, the victim and Smith returned to his house to have a couple of drinks. She was paid $30 for helping Smith with the delivery. It wasn’t until later in the evening when the victim realized that Smith expected a “sexual favor” for the $30 he had given her earlier. She offered to give the money back and made repeated attempts to leave the premises, however, Smith blocked her attempts to leave. The victim finally escaped to the garage and hid under a sink. Trying to get her out from underneath the sink, Smith “sloshed” beach on her face several times. After threats of having gasoline poured on her and being set on fire, the victim came out and went reluctantly to Smiths room. She eventually broke free of Smith and ran to her stepfather’s house, who lived down the block. Police were called, she gave her statement to the police, and later went to the emergency room for treatment.

Relying on V.M.N. v. State, 909 So. 2d 953, 954 (Fla. 4th DCA 2005), the 1st DCA determined that a “deadly weapon,” within the meaning of the aggravated battery statutes, is “1) any instrument . . . , or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.”

The victim testified at trial that the bleach was “sloshed” into her face “three or four times,” that the bleach got into her eyes, mouth and throat, “making her unable to open her eyes and constricting her throat, making breathing difficult,” and that she had to go to the emergency room to be treated. The investigating police officer testified that while the bleach bottle used in the incident was not collected into evidence, a similar bottle of bleach was produced and read the label which “specifically warned that it was toxic and corrosive, that it should not come into contact with a person’s eyes, mouth or throat, and that it could cause severe burns,” and directed a person to “seek medical attention if it got into one’s eyes.”

The 1st DCA concluded that the evidence the bleach was used in a manner to cause “great bodily harm” was presented “in the form of the victim’s testimony,” satisfying the jury’s requirement to “make a determination that bleach was used, not the effect of its use.” As such, the jury, “as fact finder,” could then determine whether or not the use of the bleach in this instance was “likely to cause great bodily harm.”

The 1st DCA held that “[s]ince the jury, as fact-finder, did determine that the bleach, as used by Smith, was a deadly weapon, we AFFIRM.”

Trisha Pate, Bureau Chief of Criminal Appeals and Joshua Heller, Bryan Jordan and Elizabeth Duffy, Assistant Attorneys General represented the state.

Opinion


Circuit court erred when it denied defendant’s suppression motion; the officer’s traffic stop of the defendant’s vehicle was unlawful.

Zarba v. State, 2D07-832, Opinion filed November 16, 2007.

Zarba, pled nolo contendere to a third-degree felony of driving while his license was revoked (habitual traffic offender) and reserved his right to appeal the circuit court’s denial of his dispositive motion to suppress his statements and the other evidence obtained after a traffic stop.

Zarba was stopped by Officer Sweat of the Haines City Police Department because the right rear brake light was not working on the Explorer he was operating. A license and registration check revealed that Zarba’s driver’s license had been revoked and the officer arrested Zarba.

At the suppression motion hearing, Officer Sweat testified he stopped Zarba because the “right rear brake light was not working.” Michael Zemaitis, a passenger in Zarba’s vehicle, testified that the vehicle was equipped with three brake lights: “one at the left rear of the vehicle, one at the right rear of the vehicle, and a center high-mounted stop lamp,” and that two of the three brake lights were operating. Zemaitis further testified that when they picked the vehicle up from the impound lot, they tested and found that “the left rear brake light and the center high-mounted stop lamp” were working and that the right rear brake light was not working.

Citing State v. Perez-Garcia, 917 So. 2d 894 (Fla. 3d DCA 2005), the prosecutor argued that even if Zarba’s vehicle complied with section 316.222(1), “the statute requiring ‘[e]very motor vehicle . . . [t]o be equipped with two or more stop lamps’ - the traffic stop was lawful under section 316.610,” which addresses vehicle safety and inspections. The prosecutor argued that the decision in State v. Burger, 921 So. 2d 847 (Fla. 2d DCA 2006), did not address whether section 316.610 applied to a vehicle that had two out of the three stop lamps operating and that the Perez-Garcia decision held that under similar circumstances the officer had the authority under section 316.610 to stop a vehicle with one out of the three stop lights not operating. The circuit court denied Zarba’s motion to suppress holding that the vehicle was lawfully stopped under section 316.610(1) and relied on the decision in Perez-Garzia as the authority for its conclusion.

In its analysis, the 2nd DCA noted its decision and the authority of Burger, where the 2nd DCA held that “if two of the vehicle’s three brake lights were operational, this was sufficient to comply with the requirements of section 316.222(1), Florida Statutes (2004). More specifically, “[t]he statute does not require that the operable lights be parallel to one another but only that they be located in the rear of the vehicle.” The statute only requires that two of the three brake lights be operational on a vehicle equipped with a center high-mounted stop lamp. The 2nd DCA also noted the Florida Supreme Court’s recent decision Hilton v. State, 961 So. 2d 284 (Fla. 2007), where it held that “a cracked windshield violates section 316.610 only if it renders the vehicle in ‘such unsafe condition as to endanger any person or property,’”

Because the state did not present any evidence that Zarba’s vehicle “posed a safety hazard” and because the statute only requires “two functional brake lights on the vehicle’s rear,” the 2nd DCA concluded that it was “unwilling to assume” that having two functional brake lights, out of three, on the vehicle’s rear, when the vehicle is equipped with a center high-mounted stop lamp, posed such an unsafe condition as to endanger any person or property, therefore, “the officer’s traffic stop of Mr. Zarba’s vehicle was unlawful.” The 2nd DCA held that the circuit court erred in denying Zarba’s suppression motion and certified conflict with “the Third District’s decision in Perez-Garcia.”

Assistant Attorney General Sonya Horbelt represented the state.
Opinion