Criminal Law Alert

Certiorari Granted.

Indiana v. Edwards, 07-208. December 7, 2007.

The question presented is whether “a criminal defendant who, despite being legally competent, is schizophrenic, delusional, and mentally decompensatory in the course of a simple conversation, [may] be denied the right to represent himself at trial when the trial court reasonably concludes that permitting self-representation would deny the defendant a fair trial?”


A postconviction motion is not pending under § 2244(d)(2) between the time that the period to file a timely appeal expires and the filing of a petition for belated appeal. [Unpublished Opinion]

McMillan v. Secretary for DOC, 05-14202, Decided December 6, 2007.

McMillan, convicted of two counts of robbery with a firearm, one count of armed carjacking, and sentenced as a habitual violent felony offender with concurrent life sentences for each court, appealed the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely.

Per the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the one-year statute of limitations for a § 2254 habeas corpus petition beings to run on the date the defendant’s conviction becomes final. 28 U.S.C. § 2244(d)(1). In the instant case, the state appellate court affirmed McMillan’s conviction and sentence on January 19, 2000, therefore, his conviction became final on April 18, 2000.

The record revealed that McMillan filed a 3.850 postconviction relief motion on December 22, 2000; two claims were initially denied and after the evidentiary hearing the remaining two claims were denied on February 13, 2002. McMillan had thirty-days, until March 15, 2002, to appeal the order. McMillan, pro se, filed his first belated appeal motion in post-conviction court on June 18, 2002. He filed his second belated appeal motion in the state appellate court on October 1, 2002. The state appellate court granted the petition; affirmed the denial of McMillan’s 3.850 motion on December 17, 2003; and issued its mandate on January 16, 2004. On February 24, 2004, McMillan filed his § 2254 habeas corpus petition and the district court dismissed the motion as untimely stating that 382 days had passed before McMillan filed his § 2254 petition. Breaking down the 382 days, the district court determined from the date his conviction was final to the date he filed his 3.850 postconviction motion consisted of 248 days; that from the expiration date of the period to appeal the denial of his postconviction relief motion to the date he filed his first belated appeal petition consisted of 95 days; and that from the mandate issue date (conclusion of his 3.850 appeal) up to the date he filed his § 2254 habeas corpus petition consisted of 39 days.

McMillan appealed and motioned for a certificate of appealability (COA). The district court denied the COA motion and the 11th Circuit granted a COA on the sole issue of: “[w]hether the district court erred by finding that the appellant was not entitled to statutory tolling during the 95-day period between the date the state court’s denial of his post-conviction motion became final and the date he filed his motion for a belated appeal.”

In its analysis, the 11th Circuit noted the Supreme Court’s clarification that “[the time that an application for state postconviction review is ‘pending’ includes the period between (1) a lower court’s adverse determination, and (2) the prisoner’s filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846 (2006). Further, the 11th Circuit noted its recent decision in Cramer v. Sec’y Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006), where it held that “an application remains pending until the time to seek appellate review expires if a petitioner does not file a notice of appeal.”

The 11th Circuit determined that McMillan did not have anything filed in state court during the 95-day period in question and there was nothing pending during this time frame. McMillan was “not entitled to statutory tolling for the 95-day period between the date the state trial court’s denial of his 3.850 motion became final and the date he filed his petition for a belated appeal.” The 11th Circuit affirmed the district court’s dismissal of McMillan’s § 2254 petition as untimely because a total of 382 non-tolled days had passed before McMillan filed his § 2254 habeas corpus petition.

Opinion


“Cumulative effect of the objected-to and unobjected-to comments” did not rise to the level of fundamental error.

Marshall v. State, SC05-2379, Opinion filed December 6, 2007.

The Florida Supreme Court affirmed Marshall’s conviction and sentenced to death for the 1988 murder of Jeffrey Henry. Marshall’s postconviction motion for relief was denied and on appeal, the Florida Supreme Court affirmed the trial court’s denial of postconviction relief “on all but one issue: Marshall’s claim of juror misconduct,” and remanded for an evidentiary hearing to be held on that issue. The trial court, after conducting the evidentiary hearing, concluded: that they could not identify the female juror who called Smith; that no further juror interviews were necessary; that there was “no proof that juror Thompson violated the court’s instructions and engaged in jury misconduct”; and that “[n]o reasonable probability exists that any of the acts charged of juror misconduct occurred,” and entered a final order denying relief on all claims of juror misconduct in the pending motions for postconviction relief. Marshall appealed the final order.

The record revealed that the trial court decided it would question all the jurors. Two separate hearings were scheduled to interview the ten surviving jurors subpoenaed to appear. Individually each juror questioned responded affirmatively when asked if “he or she” was a juror on the Marshall case. Each juror responded negatively when asked if he or she was the juror that phoned attorney Ronald B. Smith and told him that “you were a juror in the Marshall case” and “you observed other jurors doing things that were improper including making racial jokes and also failing to follow the judge’s instructions.” An emergency motion was also filed by Marshall seeking to add Debra Thomason (ex-wife of juror Coy Thomason) to the witness list of those scheduled to appear at the second hearing. A sworn affidavit by Debra Thomason was attached to the motion stating that her husband discussed the case with her; that he followed the case in the media and that he thought “Marshall was ‘guilty from the getgo.” The motion was denied. Marshall next motioned to interview juror Thomason, based on the affidavit of Ms. Thomason, however, the court scheduled a hearing on the new claim and elected to conduct the interview of juror Thomason. Thomason testified that he was not the juror who called Smith; that he didn’t know who called Smith; that he never discussed the case with his ex-wife or anyone else; and that he never carried a briefcase containing articles about this case into trial.

The Court concluded that the trial court conducted the proceedings and “interviewed the jurors in strict accordance with our instructions.” The trial court questioned each of the jurors with the focus on “attempting to discover the identity of the person who spoke to attorney Ronald Smith,” and “[w]e can hardly fault the trial court here for adhering to our instructions.” Thus, the Court found that the trial court, in compliance with its mandate, did not abuse its discretion in interviewing the former jurors. Further, Debra Thomason’s affidavit did not “relate to the identity of the juror who contacted Ronald Smith.” Because the affidavit raised a new issue of possible juror misconduct, the trial court conducted a separate hearing on that claim. Based on juror Thomason’s responses during that hearing, along with no evidence to support the claim, the Court found “no error” in the trial court’s refusal to take Ms. Thomason’s testimony.

Assistant Attorney General Lisa-Marie Lerner represented the state.

Opinion


The Court admonished improper comments during the penalty phase, however, holds that the comments did not constitute fundamental error.

Merck v. State, SC04-1902, Opinion filed December 6, 2007.

After the completion of the third resentencing proceeding, Merck was convicted and sentenced to death for the 1991 first-degree murder of James Anthony Newton. Merck appealed the conviction and sentence raising six issues.

Merck argued he was “denied a fundamentally fair penalty phase” because of the “numerous improper comments” the prosecutor made during closing arguments. In his closing argument the prosecutor stated: “The Defense will be talking to you about what we call mitigation. Things about [Merck’s] background they believe should warrant you affording him some mercy that he never afforded Mr. Newton.” At the close of his argument, the prosecutor further stated: “What [Merck] did here, there should be no mercy for a merciless crime, ladies and gentlemen. On behalf of the . . . I ask you all to recommend that he die.” The trial court overruled defense counsel’s “one” contemporaneous objection of the prosecutor making an impermissible “mercy” argument.

The Court cited to several cases where it had “repeatedly condemned mercy arguments” requesting the jury show the same amount of mercy to the defendant as the defendant showed to his or her victim. The Court concluded that the trial court erred in allowing the mercy argument, however, it determined that since the mercy comments “were not dwelled upon or emphasized in the context of the entire closing,” the trial court’s error “does not require reversal.” “We have previously held that a mercy argument standing alone does not constitute reversible error.” See Reed v. State, 875 So. 2d 415, 438 (Fla. 2004).

Merck further alleged several improper “golden rule” arguments were made by the prosecutor. The Court noted that golden rule arguments, which are “arguments that invite the jurors to place themselves in the victim’s position and ‘imagine the victim’s final pain, terror and defenselessness,’ have long been prohibited.” Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985).

The record revealed that no objection was made during trial to the alleged golden rule arguments. After a lengthy review of the alleged golden rule arguments and the context the statements were made in, the Court concluded that some of the comments were made in the “context of arguing that the evidence supported finding the HAC aggravating factor and that the aggravating factors should be found to outweigh the mitigating factors.” Two other comments were made in “direct response to defense counsel’s argument during opening statements that the murder was ‘an awful crime, but it [was] not by any means the worst’ because it was sudden and quick.” Another two comments, when reviewed in the context they were made, recounted “the testimony of the medical examiner and of the eyewitnesses who described the victim’s ‘awareness, his pain, and his last moments.’” The Court determined that the trial transcripts reflected that the prosecutor’s arguments supported the State’s position “that the HAC aggravating factor was established by the evidence and supported a recommendation of death.”

Merck further alleged that the prosecutor’s comments, used to belittle the mitigation strategy of Merck’s counsel, were improper during the penalty phase when the prosecutor argued to the jury how many books and Penthouse magazines the victim could have read since 1991 compared to how many books the defendant has been able to read while in prison. The Court agreed that the comments were improper, citing to Taylor v. State, 583 So. 2d 323, 329-30 (Fla. 1991)(holding comment that victims could no longer read books and engage in other activities was improper because it urged consideration of factors outside scope of deliberations). However, the Court concluded that the prosecutor’s comments during the penalty-phase proceedings were not “pervasive errors that comprised the integrity” of the proceedings, thus, they were not fundamental errors.

While the Court noted it was “deeply troubled” by the prosecutor’s closing remarks and his “failure to abide” by the Court’s previous rulings regarding closing statement remarks, the Court did not find that the “cumulative effect of the objected-to and unobjected-to comments rise to the level of fundamental error.”

Note: Justice Pariente had a 13-page dissenting opinion that began with “how bad does a closing argument have to be before we will reverse a verdict based on improper prosecutorial comment.”

Assistant Attorney General Robert Landry represented the state.

Opinion


Non-self-incriminatory statement should not have been admitted as an exception to the hearsay rule; however, error found to be “harmless beyond a reasonable doubt.”

Perez v. State, 3D06-356, Opinion filed December 5, 2007.

Perez, convicted of attempted second-degree murder with a firearm and aggravated battery and sentenced to twenty-five years in prison on the attempted second-degree murder charge and fifteen years in prison on the aggravated battery charge, appealed his convictions and sentences.

Perez argued that the trial court erred in failing to suppress his post-arrest statements to Detective Ballata. The record reflected that Detective Ballata read Perez his Miranda rights and when Perez invoked his right to counsel, Ballata “ceased conversation and started to leave the room.” Perez then stopped Ballata and asked him “what charges would be filed against him.” Ballata showed Perez a photo of the other suspect in the case, Hector Laurencio, and told Perez both “he and Laurencio were being charged with a home invasion robbery.” Perez denied knowing him. Ballata then showed him a picture of Laurencio and Perez together and Perez responded that the picture “was taken before Laurencio went to jail.” Without any other conversation the detective left the room. Perez argued that “Ballata’s use of the picture of Laurencio was tantamount to custodial interrogation in violation of his right to remain silent and his right to counsel.”

After a review of the record, the 3rd DCA concluded that Perez “reinitiated the conversation” when he asked about the charges and that the detective could “not have intentionally planned to introduce the photographs to elicit an incriminating response when he did not even know he would have a further opportunity to do so after interrogation had ceased.” That the showing of the photographs to Perez “was not the functional equivalent of interrogation” and held the statements were properly admitted.

Perez argued the cellular phone records custodians’ testimony regarding “how far a hypothetical caller would be from the phone tower was testimony beyond their expertise and personal knowledge” and should not have been “admitted as a business records exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2007). The cell phone records of Perez and Laurencio was introduced at trial and the cellular phone records custodians testified “that persons who placed cell phone calls would be within a certain distance (one to three miles) from the cell towers identified with those calls.” The record revealed that cell phone custodians “factually compared the locations on the phone records to locations on the cell site maps.”

The 3rd DCA concluded that the cell phone custodians’ testimony “constituted general background information interpreting the cell phone records which did not require expert testimony,” that there was no evidence presented to dispute the “generalized facts or question their validity,” and that the cell phone records were properly introduced as business records.

Perez further argued that Martin’s testimony that Hector Laurencio, a co-defendant in this case and who did not testify himself, told Martin that “he had done a robbery in Miami Lakes” and that Salgado (a/k/a the Fish) also participated in the robbery was in violation of the hearsay rule and his right to confront a witness against him. He further argued that the introduction of those statements served “as a predicate for the cell phone record evidence which showed the stream of telecommunications between the participants in the home-invasion robbery.” The record revealed that the trial court gave a “limiting jury instruction that the statements made by Laurencio were not to be considered evidence of the guilt of the defendant.”

The 3rd DCA concluded Martin’s testimony regarding Laurencio’s confession to Martin of his involvement in the robbery “was admissible as an exception to Florida’s hearsay rule, section 90.802, Florida Statutes (2007), as against Laurencio’s penal interest.” Because there was no mention of Perez in the statement and because the statement “exposed the declarant, Laurencio, to criminal liability,” along with the trial court’s limiting jury instruction, the statement did not violate the Confrontation Clause. The second part of the statement that “Fish” was also involved in the robbery should not have been admitted as an exception to the hearsay rule because “it was not inculpatory as to the declarant, Laurencio.” However, because the second part of the statement “did not implicate the defendant in the crime,” the 3rd DCA held the error to be harmless beyond a reasonable doubt.

Assistant Attorney General Maria Armas represented the state.

Opinion