Criminal Law Alert

Reminder: Revised Supreme Court Rules - Effective February 16, 2010.
Dan Schweitzer @ NAAG.org summarized what he called “the most noteworthy” of the USSC’s revised version of Rules of the Court.

Most of the changes are technical in nature. The most noteworthy ones are:

● The word limit for Reply Briefs on the merits has been changed from 7,500 to 6,000. When the Court changed from page limits to word limits in 2007, it inadvertently reduced the Reply Briefs’ word limit to an amount that left them far longer than they had previously been. The new revision returns them to their former length (namely, 40% the length of the opening merits briefs). [Revised Rule 33.1]

● Covers of briefs must now include the e-mail address of the counsel of record. [Revised Rule 34.1(f)]

● “Every appendix to a document must be preceded by a table of contents that provides a description of each document in the appendix.” [Revised Rule 34.4]

● Another revised rule addresses apparent confusion in how statutes should be cited. Some statutes are commonly cited by the sections of the original enactment, rather than the sections as codified in the U.S. Code. The rules now state that “[a]ll references to a provision of federal statutory law should ordinarily be cited to the United States Code, if the provision has been codified therein. . . . Additional or alternative citations should be provided only if there is a particular reason why those citations are relevant or necessary to the argument.” [Revised Rule 34.5]

● The Court clarified that the recently added requirement that amici curiae provide 10-day notice to all parties only applies to amicus briefs filed at the certiorari stage. [Revised Rule 37.3(a)]

● Finally, the Court laid out when the new Rules will apply. Except where the Court finds it to be infeasible, the revised “Rules govern all proceedings after their effective date,” here, February 16, 2010. However, briefs may comply with the prior version of the rules “in any case in which a petitioner or appellant has filed its brief on the merits prior to” February 16. [Revised Rule 48], 08-9156. Decided, 2010.

Revisions: USSC2010RevisedRules.pdf

Certiorari Granted.

Title: Connick v. Thompson. Certiorari Granted March 22, 2010. Limited to question 1.
Docket: 09-571
Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney’s office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation undermine prosecutors’ absolute immunity?

Title: Belleque v. Moore. Certiorari Granted March 22, 2010.
Docket: 09-658
Issues: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

FYI: Execution delayed in DNA case. Potential sequel to Osborne.
Reported by Lyle Denniston @ SCOTUS.

The Supreme Court on Wednesday (March 24, 2010) evening delayed the execution in Texas of Henry W. Skinner, at least until the Court acts on his new case seeking to pursue a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago. The Court’s order blocked an execution that had been scheduled for 7 p.m. Washington time. The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6). The Court decided the Osborne case on June 18, but left unresolved that specific issue. The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge. Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.

Full article can be found: http://www.scotusblog.com/2010/03/execution-delayed-in-dna-case-2/#more-17788

Habeas granted in part and denied in part; sent back for new trial because State failed to disclose witness had been paid for testimony.

Guzman v. Secretary, DOC, 6:06-cv-1271-Orl-35GJK. Decided March 17, 2010.

Guzman, convicted of first-degree murder and armed robbery, was adjudicated guilty and received a sentence of death. In his federal habeas petition, Guzman alleged seven claims. The Middle District denied a certificate of appealability on claims two through seven. As to claim one, Guzman asserted “there was both a Giglio violation and a Brady violation.” Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, U.S. 83 (1963). With regards to the Giglio violation, Guzman contends “Ms. Cronin and the lead detective in this case both testified falsely at trial that Ms. Cronin received no benefit for her testimony against Petitioner, other than being taken to a motel rather than to a jail when she was arrested.” With regards to the Brady violation, Guzman contends “that the State failed to disclose that Ms. Cronin received a $500 reward for her testimony.”

Regarding the Giglio claim, the Middle District determined that “the false testimony was material, and there was a reasonable likelihood that the false testimony could have affected the trial court’s judgment as the fact-finder in this case.” Further, Guzman “has shown that the false testimony was not harmless beyond a reasonable doubt and that it had a substantial and injurious effect or influence in determining the trial court’s verdict.” Based on the facts of this case, the Middle District, determined that “Petitioner has shown that the decision of the Supreme Court of Florida was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” and held that “this issue is meritorious, and Petitioner is entitled to habeas relief on this claim.”

Regarding the Brady claim, the Middle District determined that “[c]ertainly, a rational and objective fact-finder would have considered the fact that 1) Ms. Cronin, the most important witness for the State received a payment of $500, and 2) both Ms. Cronin and the lead detective in this case falsely testified that any compensation had been paid to Ms. Cronin.” Further, “the false testimony and the withholding of the evidence pertaining to the reward was material, and there was a reasonable probability that the false testimony and evidence would have affected the trial court’s judgment as the fact-finder in this case.” The Middle District concluded that Guzman “has demonstrated that the false testimony and the withholding of the evidence was not harmless beyond a reasonable doubt and that it had a substantial and injurious effect or influence in determining the trial court’s verdict.” Guzman “has shown that the decision of the Supreme Court of Florida was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” and held that “this issue is meritorious, and Petitioner is entitled to habeas relief on this claim.”

Assistant Attorney General Kenneth Nunnelley represented the state.

Order: USMD ORDER USDCMiddleGuzmanGrantinPartDenyin Part.pdf

Defendant properly mirandized; officers did not employ a “warn-delay-interrogate strategy.”

McWatters v. State, SC07-51. Opinion filed March 18, 2010.

On direct appeal, McWatters, convicted of three counts of first-degree murder and three counts of sexual battery with great force (strangulation murders) and sentenced to death for each murder appealed arguing several guilt phase and penalty phase claims.

In one issue, McWatters contends that the thirty-minute delay between receiving his Miranda warnings from the arresting officer, Sergeant Humphrey, and the actual interrogation by Detective Dougherty was a “warn-delay-interrogate strategy that rendered the warning constitutionally inadequate under the United States Supreme Court’s holding in Missouri v. Seibert, 542 U.S. 600, 604 (2004).”

The record revealed that at trial, McWatters moved to suppress his confession saying the delay between receiving his Miranda warning and the actual interrogation “diluted the effectiveness” of his waiver. The trial court denied the motion finding that McWatters was given a “thorough and accurate reading of his Miranda rights,” and that McWatters “understood the rights read to him and repeatedly asked to be able to speak to Detective Dougherty.” “The Miranda warning was not re-read before McWatters was interviewed by Detective Dougherty.” The Court concluded that McWatters did not “challenge the trial court’s findings of fact,” even though he did dispute the claim that less than thirty minutes passed between the warning and the interrogation.

The Court determined that unlike Seibert, McWatters received his Miranda warning “as soon as he was taken into custody, and he has conceded that he was accurately informed of his rights and that he understood his rights before any questioning began.” The Court held the trial court did not err in denying McWatters’ suppression motion and did not err “in concluding . . . officers were not obligated to readvise McWatters of his rights immediately before the interview.” The interlude between the warning and the interview was “comparatively brief.” In addition, McWatters undermined his own claim when he waived his rights by requesting to speak with Detective Dougherty, “who did in fact conduct the interview about the homicides.”

The Court found each death sentence was proportionate and affirmed McWatters’ convictions and his sentences of death.

Assistant Attorneys General Lisa-Marie Lerner and Jason Pollack represented the state.

Opinion: sc07-51McWatters.pdf

B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 35, Number 10, March 12, 2010.

Jaimes v. State, 19 So. 3d 347 (Fla. 2DCA 2009). Supreme Court Case No. SC09-1694 (Jaimes v. State). Order dated March 8, 2010. No oral argument. Criminal law – Aggravated battery by causing great bodily harm – Defendant was erroneously found guilty of aggravated battery by causing great bodily harm where information did not charge him with causing great bodily harm, but rather with aggravated battery by using a dangerous weapon – Error was not fundamental and was not preserved for appellate review – Sentencing – Error to impose sentence of twenty-five years’ incarceration for second-degree felony of aggravated battery, which is punishable by up to fifteen years.

Tasker v. State, 12 So. 3d 889 (Fla. 1DCA 2009). Supreme Court Case No. SC09-1281 (Tasker v. State). Order dated March 9, 2010. No oral argument. Criminal law – Probation revocation – Sentencing – Guidelines – Scoresheet – Appeals – Claim that scoresheet completed at time of original sentencing improperly assessed forty points for victim injury as result of sexual contact was not preserved where issue was not raised at initial sentencing or in three subsequently held probation violation hearings – Conflict certified.

Trial court struck motion to discharge counsel as nullity in error; reversed and remanded for new trial.

Maderson v. State, 1D08-5843. Opinion filed March 10, 2010.

Maderson appealed his conviction and sentence for robbery with a weapon arguing “the trial court erred in failing to consider and rule on his motion to discharge counsel and in admitting evidence of collateral crimes.”

A few days before trial began; Maderson filed a pro se motion to discharge counsel alleging his counsel was incompetent for failing to prepare an adequate defense. Before the trial began, the court informed Maderson that his motion was “considered a nullity” because he was represented by counsel. Maderson argued that “defense counsel was unlikely to file a motion to dismiss himself,” and the court “informed him that he could file a motion for postconviction relief if he was convicted.” Defense counsel “volunteered” to address his client’s concerns and informed the court that “he had done everything he could.” Maderson asserted that counsel did very little and did not do “all that was asked of him.” Maderson was informed it was his counsel’s decision “whether to file the motion to dismiss counsel.” Maderson “complained that counsel had done nothing other than show up for court and that the copies of depositions he had provided were incomplete.” Shortly thereafter, trial began.

The 1^st DCA discussed the procedure “to be followed when a defendant raises a motion to discharge his or her court-appointed trial counsel on ground that counsel is incompetent,” as outlined by the 4^th DCA in Nelson v. State, 274 So. 2d 256 (Fla. 4^th DCA 1973) and adopted by the Florida Supreme Court.

The 1st DCA determined that the trial court erred striking the motion to dismiss counsel as a nullity. While these motions generally are considered “nullities,” “they should not be stricken as such if a defendant unequivocally seeks to discharge counsel or where the defendant makes allegations that give rise to a clear adversarial relationship with counsel.” Sheppard v. State, 17 So. 3d 275, 282 (Fla. 2009); Murry v. State, 1 So. 3d 407, 408 (Fla. 2d DCA 2009) (citing Purnell v. State, 931 So. 2d 134, 135 (Fla. 2d DCA 2006)). The 1^st DCA found that Maderson was not given “an adequate opportunity to address his claims to the court,” that the court did not “make a finding regarding the reasonableness of the claims,” and the court did not inform Maderson, that “should he choose to discharge counsel, a substitute counsel may not be appointed.” The 1^st DCA reversed and remanded for a new trial.

Assistant Attorney General Donna Gerace represented the state.

Opinion: 1D08-5843Maderson.pdf

Certiorari petition dismissed; petitioner failed to show departure from essential requirements of law caused material and irreparable harm.

State v. Jones, 2D08-5751. Opinion filed March 12, 2010.

The State petitioned for a writ of certiorari to quash the trial court’s “pretrial order excluding certain test results from evidence, as well as its subsequent order denying the State’s motion for rehearing.”

Jones, charged with sexual offenses against a child victim, filed a motion in limine “to exclude any mention of the tests or their results from evidence, claiming that there was no chain of custody in place on the urine samples and that introduction of the test results without the testimony of those who created the results violated Mr. Jones's constitutional right to confrontation.” See Crawford v. Washington, 541 U.S. 36 (2004). At the hearing on the motion, defense counsel argued: (1) the two nurses that collected the urine samples each said “we don’t do chain of custody on urine samples,” and (2) “the identities of the lab technicians who tested the urine and created the reports were unknown and, therefore, the State could not introduce the reports.” Because no witnesses testified and no documents or reports were entered into evidence, the trial court granted the motion. The State motioned for rehearing and it was denied.

The 2^nd DCA referred to its decision in Gonzalez v. State, 15 So. 3d 37, 39 (Fla. 2d DCA 2009), where it stated that “[t]o obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm.”

Following its analysis of the record, the 2^nd DCA determined that the trial court departed from the essential requirements of law in two instances. First, Jones presented no evidence to demonstrate “a probability of tampering and made no argument suggesting a tampering problem exists.” Jones failed to satisfy his burden of proof and “the trial court departed from the essential requirements of law by granting the motion without any evidence to support Mr. Jones’s argument.” Second, Jones provided no evidence to support his assertion that “the urinalyses were ordered for prosecutorial purposes rather than for medical reasons.” “Without any evidence to support the assertion . . . the trial court departed from the essential requirements of law in finding that introduction of the test results would violate Crawford.”

While the trial court departed from the essential requirements of law, the 2^nd DCA found that “the State makes no comment on the second prong necessary for certiorari relief: irreparable harm.” Gonzalez, 15 So. 3d at 39. The 2^nd DCA concluded “the petition discusses the trial court’s legal error without specifying the harm suffered or explaining how that harm is irreparable.” “The petition does not address whether or how the legal error ‘substantially impair[ed] the ability of the state to prosecute its case.’” Thus, “without the requisite allegation of irreparable harm, this court has no jurisdiction to grant relief,” and the 2^nd DCA dismissed the petition for writ of certiorari.

Assistant Attorney General Sonya Horbelt represented the state.

Opinion: 2D08-5751Jones.pdf

Motion to dismiss reversed; intent of defendant should be left to the trier of fact.

State v. Major, 4D09-2988. Opinion filed March 10, 2010.

The State appealed the trial court’s order granting Major’s motion to dismiss arguing the trial court improperly dismissed the charge of tampering with or fabricating evidence.

Major was stopped by a law enforcement officer for failing to stop at a stop sign. As the officer approached the vehicle, he noticed Major “chewing.” Major complied with the officer’s request to “open his mouth.” A “green leafy substance” was discovered, which later tested positive for cannabis. Major filed a motion to dismiss claiming “no criminal investigation was pending” when he was stopped. He admitted to “eating an illegal substance, but denied any knowledge of any investigation” asserting the stop was for a traffic violation “and had nothing to do with cannabis.” The State filed a traverse claiming the officer “immediately smell[ed] cannabis coming from the vehicle” and that Major was aware of the criminal investigation since “he would not have eaten the cannabis otherwise.” The trial court, noting “it was unclear when Appellee started to chew the marijuana” dismissed the charge, “finding that the destruction of the cannabis was not destruction of evidence unless Appellee had knowledge of an investigation.” The State appealed.

The 4^th DCA noted that Major, in his sworn motion, “did not assert when he started chewing the marijuana.” Thus, “the trial court could only speculate as to the relationship between the chewing of the marijuana and the start of the investigation.” The 4^th DCA determined that by not asserting when he started chewing the marijuana, Major “has not carried his burden to show that the State cannot establish a prima facie case of guilt.”

The facts as alleged would allow either an inference that appellee was chewing prior to attracting the attention of law enforcement or that appellee placed the drugs in his mouth exactly because he knew he was about to be investigated. Failure to address this fact is fatal to appellee’s motion to dismiss, as we must take all inferences in the light most favorable to the State. State v. Lebron, 954 So. 2d 52, 54 (Fla. 5th DCA 2007).

“Since taking all inferences in the light most favorable to the State, there remained a material factual dispute for the trier of fact to determine,” the 4^th DCA reversed the trial court’s order that granted the motion to dismiss.

Assistant Attorney General Melynda Melear represented the state.

Opinion: 4D09-2988Major.op.pdf

Error to summarily deny 3.850 relief motion; defendant entitled to evidentiary hearing on ineffective assistance of counsel claim.

Pereira v. State, 5D09-2942. Opinion filed March 12, 2010.

Pereira, charged with one count of strong arm robbery, appealed the trial court’s order summarily denying his 3.850 motion for postconviction relief.

Pereira alleged that “when the jury was charged, in addition to the instruction on robbery, they were instructed on grand theft of a dwelling and petit theft as the lesser-included offenses.” Pereira’s counsel did not object to these instructions. Pereira was convicted of “the lesser-included offense of grand theft of a dwelling, value of $100.00 or more but less than $300.00, a third-degree felony” and sentenced to “10 years’ incarceration as a habitual felony offender.” Pereira’s judgment and sentenced were affirmed on direct appeal. In Pereira’s postconviction relief motion, he argued ineffective assistance of trial counsel for not objecting that Pereira “was convicted of a crime not charged in the amended information.” Pereira contends “that grand theft of a dwelling was not properly listed as a lesser-included offense on the jury’s verdict form because the allegations in the amended information failed to sufficiently allege the elements of grand theft as a lesser-included offense of the charge of strong arm robbery.” Pereira asserts that “the offense of grand theft of a dwelling includes two elements that are not found within the offense of strong arm robbery: the value of the property taken and the requirement that the property be taken from a dwelling.”

The 5^th DCA reversed and remanded for an evidentiary hearing holding that the trial court erred in summarily denying Pereira’s 3.850 claim. The 5^th DCA stated:

. . . our conclusion does not mean that the defendant is entitled to have his judgment corrected to reflect a conviction on the lesser-included offense of petit theft. Rather, since he argued that his trial counsel was ineffective in allowing the crime of grand theft of a dwelling to be included in the jury instructions, on remand the trial court must determine whether it was a strategic decision on the part of trial counsel to allow this lesser-included offense to go to the jury.

Assistant Attorney General Douglas Squire represented the state.

Opinion: 5D09-2942Pereira.op.pdf