Criminal Law Alert

“Medical evidence and observations of lay witnesses” supports the finding that the execution of Diaz was not botched; Lightbourne did not carry his burden.

State v. Lightbourne, 1981-170CF; SC06-2391, Opinion filed 09/10/07.

Lightbourne, convicted for capital murder, filed an All Writs Petition in the Florida Supreme Court after the execution of Angel Diaz, claiming Florida’s lethal injection procedures unconstitutional; that the execution of Diaz was botched and he “suffered unnecessary and wanton infliction of pain,” and that the execution procedures “did and will in the future expose inmates to be executed to an unreasonable risk of suffering . . .”

The Florida Supreme Court remanded the case to the trial court for consideration of the petition. Following an extensive evidentiary hearing, which was agreed to by the State for this case only, the Circuit Court found that “regardless” of the problem as to the delivery of the drugs, “the executioners at all times injected all of the chemicals from both stands into the body of the inmate in the proper sequence . . . ” The Circuit Court rejected the conclusion of the one witness “who felt he had observed a man tortured to death” because his observation was not supported by the medical evidence presented, nor by the other witnesses. The Circuit Court further found that “none of the irregularities in the Diaz execution caused the execution to result in any abuse, or any cruel or unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution or the Florida Constitution.”

Diaz was executed under the protocols adopted on August 16, 2006. Those protocols were amended on May 9, 2007 and again on August 1, 2007. Applicable to this case, the Circuit Court cited to the recent decision in the Schwab case: “. . . the principle remains that the Department is entrusted with developing adequate protocol, revising as necessary to meet evolving societal concerns and that the mere possibility of human error in the process of execution does not render the current protocol inadequate.” Order dated 17 August 2007 in State v. Schwab, in the Circuit Court for the Eighteenth Judicial Circuit in and for Brevard County, Florida, Case No. 05-1991-7249-AXXX. There is no requirement, in the Eighth Amendment that requires the State “to guarantee that executions proceed without human error.” Jones v. State, 701 So. 2d 76 (Fla. 1997). The Circuit Court concluded that the death of Diaz was “painless and humane” and occurred within “a reasonably short time.” The petition was denied and Lightbourne’s temporary stay of execution was “vacated and terminated.”

Assistant Attorney General Kenneth S. Nunnelley represented the state.

Opinion


District Court erred; refusal to file a § 5K1.1 (substantial-assistance) motion in retribution for exercising the constitutional right to a jury trial, “constitutes an unconstitutional motive under Wade.”

United States v. Dorsey, et al., 06-16698, Decided August 31, 2007.

Dorsey, convicted and sentenced for drug conspiracy and distribution charges, appealed his sentence arguing the government’s refusal to file a § 5K1.1 motion to reduce his sentence was to “punish him for exercising his Sixth Amendment right to a jury trial, thereby denying him due process of law.”

The record revealed that Dorsey agreed to cooperate with the Sarasota Police Department after his arrest by helping to set up a drug purchase between his drug supplier, Steve Washington, and a detective in the police department. Washington called the cellular phone number that was provided to him and the detective “made arrangements to purchase a quarter kilogram of cocaine.” When Washington arrived to “deliver the cocaine,” he was arrested and the cocaine was seized.

The government alleged it never told Dorsey that he “earned a § 5K1.1 departure,” instead it advised him that “the circumstances surrounding the minimal amount of cooperation he provided” would be considered. Dorsey alleged that the government “informed him” he could “earn a § 5K1.1 departure because of his cooperation if he pled guilty,” that it was obvious “his cooperation was complete,” and that the government’s refusal to file a § 5K1.1 departure motion because he chose to go to trial was an unconstitutional motive. The district court denied the motion without an explanation.

The 11th Circuit concluded that without a § 5K1.1 motion from the government, the district court cannot grant a downward departure for substantial assistance, however, “federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive,” such as “race or religion.” See Wade v. United States, 504 U.S. 181, 185-1856, 112 S. Ct. at 1843-44 (1992). The Third, Ninth and Tenth Circuits, have held that “refusing to file a § 5K1.1 to punish a defendant for exercising this right is an unconstitutional motive.” Agreeing with its “sister circuits,” the 11th Circuit held that “refusing to file a § 5K1.1 motion in retribution for exercising the Sixth Amendment right to a trial by jury is an unconstitutional motive under Wade.”

Opinion


Petitioner is barred from “relitigating claims” in federal habeas court that were previously adjudicated on the merits in state court.

Owen v. Crosby, 03-81152-CIV-GRAHAM, Order filed September 4, 2007.

In three written opinions, the Florida Supreme Court affirmed Owen’s conviction and sentence to death for capital murder. Owen petitioned this district court for a writ of habeas corpus raising eighteen claims, including several ineffective assistance of counsel claims. Owen alleged the state court failed to grant a Huff hearing on his ineffectiveness of trial counsel for failing to suppress his statement and that he was forced to proceed with the claim, at the evidentiary hearing, “despite the fact that the proceeding would have led to the exposure of damaging privileged communications for the pending Slattery retrial.”

The record revealed that Owen’s Fourth Amended Motion for postconviction relief alleging “meritorious federal constitutional grounds for excluding his confession,” was filed on the morning of his evidentiary hearing. The evidentiary hearing was granted for five of his claims alleged in his Third Amended Motion for postconviction relief and the Court permitted the parties “to proceed on the Fourth Amended Motion.” At the evidentiary hearing, Owen was allowed to present evidence to support his claim, however, Mr. Krischer, Owen’s attorney in the Slattery murder retrial, claimed attorney-client privilege stating he would be unable to testify without disclosing protected information. The trial court issued a protective order barring “disclosure of attorney-client confidences,” however, Owen elected “not to proceed with the hearing” in spite of the court’s warning that it would “deny the Fourth Amended Motion if they elected not to proceed.” Both Owen and his counsel indicated “their understanding of the court’s intent” when addressed by the Court to that issue.

The District Court held that Owen’s “assertion of error based on a lack of a Huff hearing” and his assertion of error “based on the state court’s alleged refusal to permit Petitioner to present evidence in support of this Claim” were without merit and “merely an attempt to relitigate the motions to suppress.” The claims were procedurally barred.

Assistant Attorney General Celia Terenzio represented the state.

Order


District Court considers State’s alternative argument (“tipsy coachmen” rule); arrest was valid and supported by probable cause.

Bravo v. State, 2D06-1760, Opinion filed August 31, 2007.

Pleading no contest to trafficking in amphetamine (meth), Bravo reserved the right to appeal the trial court’s dispositive order denying his suppression motion to “suppress contraband that he discarded during a tussle with law enforcement officers.”

The record showed that Bravo was arrested with the help of Mr. Doe, an informant arrested on another matter and who agreed to “cooperate” with Sergeant Baldwin of the Polk County Sheriff’s Office and Drug Enforcement Agency (DEA) agents Armando Guerrero and Terry Corn. Doe identified Bravo as his meth supplier and arranged a purchase of the drug from Mr. Bravo. All calls between Doe and Bravo were recorded. Doe also informed the officers that Bravo “wrapped the drugs in black electrical tape–forming a ‘black ball’–and carried them in his pocket.” On the day of the arrest, the officers were set up inside Doe’s residence and when Bravo entered the living room the officers immediately announced: “Police[!] You’re under arrest[!]” While the DEA agent was attempting to handcuff Bravo, the Sergeant recovered items he witnessed Bravo remove from his pocket and throw on the living room floor. The items turned out to be a pack of cigarettes and a ball of black electrical tape. The trial court found the initial encounter with Bravo and DEA agents a “detention, based on reasonable suspicion,” and because “it was not until after [Mr. Bravo] threw the drugs on the ground that the arrest was achieved, the arrest was supported by probable cause pursuant to the plain view doctrine.” State v. Hendrex, 865 So. 2d 531 (Fla. 2d DCA 2003).

On appeal, Bravo conceded the officers had “a reasonable suspicion of criminal activity” to justify temporarily detaining him, but did not have probable cause to arrest him. The State’s alternative argument was that “the officers had probable cause to arrest Mr. Bravo as soon as he walked into Mr. Doe’s living room.” See § 901.15(3), Fla. Stat. (2001); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).

The 2nd DCA determined that the officers’ “intention was to arrest” Bravo; that Bravo was seized the moment the officers “grabbed his arms” to handcuff him; that the officers announced they were law enforcement officials and informed Bravo he was under arrest when he walked into the living room; and that Bravo “clearly understood” the officers’ intent to arrest him, thus, all the elements of an arrest were present. Because of the totality of the circumstances, the Court concluded that the officers had probable cause to believe that “Bravo was engaged in committing a felony when he entered Mr. Doe’s residence.” Further, the arrest was valid because the officers “verified the details ‘except for the final one of the commission of the crime.’”

Assistant Attorney General Richard MacDonald represented the state.

Opinion


A claim not raised on direct appeal or in any postconviction relief motion, cannot be raised for the first time in a Petition for Writ of Habeas Corpus.

Mustelier v. State, 3D06-967, Opinion filed August 29, 2007.

Mustelier, convicted and sentenced for first-degree felony murder and conspiracy to traffic in cocaine, appealed the trial court’s order denying his Petition for Writ of Habeas Corpus.

The record revealed that following the denial of “subsequent motions for post conviction relief,” Mustelier sought relief “on the grounds that the trial judge was not physically present during the voir dire phase of his 1986 trial.” The trial court determined that prior to the decision rendered in State v. Singletary, 549 So. 2d 996, 997 (Fla. 1989), the judge’s presence was not required during voir dire. The decision “set forth a prohibition on judge absences during voir dire,” and stated that “only future cases and not cases decided previous to the decision would be affected.” Mustelier’s trial was in November 1996. Further, since Mustelier’s claims were not raised either in a direct appeal or in any of his postconviction relief motions, the trial court treated the motion as an additional postconviction relief motion and “dismissed it as untimely”.

Affirming the trial court’s decision, the 3rd DCA determined that the trial court properly treated Mustelier’s motion as an additional postconviction relief motion and properly dismissed it as untimely.

Assistant Attorney General Timothy Thomas represented the state.

Opinion