Criminal Law Alert

Certiorari Granted: Summaries by Dan Schweitzer at NAAG.

Certiorari was granted (10/01/13) in the following two cases:

Navarette v. California, 12-9490.

The Court will address whether the police, consistent with the Fourth Amendment, may stop a vehicle based on an anonymous tip about reckless driving where the police did not personally observe reckless driving. In this case, the California Court of Appeal upheld a stop based on an anonymous tip that a car ran the tipster off the road. The tip provided the location and specified the make, model, and license plate of the car. After stopping the car, the officers found large quantities of marijuana in the vehicle.

United States v. Castleman, 12-1371.

Under 18 U.S.C. §922(g)(9), it is a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined to include any federal, state, or tribal misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” Id. §921(a)(33)(A) (emphasis added). Under review is a Sixth Circuit decision holding that respondent’s Tennessee conviction for mis­demeanor domestic assault by intentionally or know­ingly causing bodily injury to the mother of his child does not qualify as a conviction for a “misdemeanor crime of domestic violence.” That is so, reasoned the court, because (1) “physical force” means “strong and violent physical force,” and (2) a person could violate the Tennessee statute without using strong and violent physical force (e.g., by deceiving the victim into drinking poison).

“Petitions”- Summaries @ SCOTUS.

The following is the outcome for the cases of interest that were up for consideration at the Justices’ private conference on September 30, 2013:

13-191 Philip Morris USA Inc. v. Douglas. DENIED 10/07/13.

Whether the Due Process Clause is violated by the Florida Supreme Court’s new rule of preclusion, which permits Engle v. Liggett Group, Inc. class members to establish petitioners’ liability without being required to prove essential elements of their claims or establishing that those elements were actually decided in their favor in a prior proceeding.

13-103 Hartman v. Moore. DENIED 10/07/13.


Whether law-enforcement agents accused of retaliatory prosecution in violation of the First Amendment should receive qualified immunity where the officers could reasonably have believed that the prosecution was supported by probable cause.

13-95 Unger v. Young. DISTRIBUTED for Conference of October 11, 2013.

(1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.

13-85 Patterson v. Adkins. DENIED 10/07/13.

Whether, when a state court cites and applies the correct standard from Batson v. Kentucky for assessing whether a habeas petitioner has established discrimination in jury selection, the state court’s failure to expressly address “all relevant circumstances” in a written opinion means that the state court’s decision is “unreasonable” and entitled to no deference under the Antiterrorism and Effective Death Penalty Act.

12-1480 Rapelje v. McClellan. DISTRIBUTED for Conference of October 11, 2013.

(1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

12-1472 Ryan v. Hurles. DISTRIBUTED for Conference of October 11, 2013.

Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

12-1256 New Mexico v. Navarette. DENIED 10/07/13.

(1) Whether the Confrontation Clause prohibits a chief medical investigator from testifying about objective facts in an autopsy report earlier by another medical examiner when the report was not admitted into evidence, was not certified or sworn, and was not prepared for the primary purposes of accusing the targeted individual of a crime or of providing evidence at a criminal trial; (2) whether the definition of the constitutional term "witnesses" in Crawford v. Washington should be overruled or modified; and (3) whether any constitutional error in the admission of an out-of-court statement is harmless beyond a reasonable doubt when it is more beneficial to the defense than the state, a testifying expert was available for cross examination about the statement, and the evidence of guilt was overwhelming.

12-1218 Folino v. Johnson. DENIED 10/07/13.

(1) Whether the United States Court of Appeals for the Third Circuit and other courts of appeals which have interpreted the materiality standard of Brady v. Maryland to include evidence inadmissible at trial if such material could have led to the discovery of admissible evidence have expanded the scope of Brady in a manner contrary to Wood v. Bartholomew, and, in so doing, have substituted mere admissibility for the requirement that to be "material" undisclosed evidence must present a "reasonable probability" that the result of the trial would have been different had the evidence been disclosed, and in a manner which, in the instant case, would have required the prosecution to search the entire universe of police reports to find those reports which referenced, but did not charge, a prosecution witness; (2) whether the United States Court of Appeals for the Third Circuit, by directing the district court to evaluate Johnson's claim "in light of the Third Circuit opinion," has required the district court to accept characterizations of the allegedly suppressed evidence which in some instances are contrary to this Court's teachings, such as the weight to be given affidavits solicited by habeas counsel long after the verdict was obtained, and which, in other instances, are factually inaccurate.

12-1217 Stanton v. Sims. DISTRIBUTED for Conference of October 11, 2013.

(1) Whether the “hot pursuit” doctrine articulated in United States v. Santana applies where police officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.

Application of CCP aggravator did not violate the Ex Post Factor Clause because “the factor did not disadvantage the defendant.”

Muhammad v. Secretary, DOC, et al., 12-16243. Decided September 23, 2013.

Muhammad (f.k.a. Thomas Knight) was convicted and sentenced to death for the murders of Sydney and Lillian Gans back in 1974. In 1980, while in prison for the murders of Sydney and Lillian Gans, Muhammad killed a prison guard, Officer James Burke and he was again convicted and sentenced to death for the murder of Officer James Burke. In 1980 Muhammad’s postconviction relief petition was pending before the Florida state courts. It was noted that after Muhammad’s convictions for the murders of Sydney and Lillian Gans became final, “Muhammad embarked on an odyssey for postconviction relief that has spanned more than three decades.”

Muhammad was denied postconviction relief in 1988. The 11^th Circuit “granted Muhammad’s petition for a writ of habeas corpus and vacated his death sentence because of impermissible comments by the trial judge and counsel for both parties.” Muhammad was resentenced to death in state court and the Florida Supreme Court again affirmed his conviction on direct appeal and collateral review. In 2012, “the district court granted Muhammad a federal writ of habeas corpus on the ground that his right to confrontation had been violated at his resentencing hearing.”

The 11^th Circuit reversed the judgment in favor of Muhammad and rendered a judgment in favor of the Secretary.

Muhammad’s claim that the admission of hearsay testimony at his resentencing hearing violated his rights under the Confrontation Clause, U.S. Const. Amend. VI, fails because hearsay is admissible at capital sentencing and Muhammad had an opportunity to rebut the hearsay. Muhammad’s claim that the application of the cold, calculated, and premeditated statutory aggravating factor violated his rights under the Ex Post Facto Clause, id. Art. I, § 9, fails because the retrospective application of the factor did not disadvantage Muhammad.

Assistant Attorney General Sandra Jaggard represented the state.

Opinion: 201216243.pdf

Challenges for cause clarified.

Matarranz v. State, SC11-1617. Opinion filed September 26, 2013.

Matarranz sought review of the 3^rd DCA’s decision in Matarranz v. State, 99 So. 3d 534 (Fla. 3d DCA 2011), in which he alleges “a violation of his due process rights occurred because his trial was not conducted before a fair and impartial tribunal of his peers.” The Court has jurisdiction on the basis that the 3^rd DCA’s decision “expressly and directly conflicts” with the 4^th DCA’s decision in “Huber v. State, 669 So. 2d 1079 (Fla. 4th DCA 1996), on a question of law. See art. V, § 3(b)(3), Fla. Const.” The 4^th DCA in Huber held that “the trial court erred when it refused to dismiss a prospective juror for cause who originally expressed doubt regarding whether he could presume the defendant was innocent and follow the law.” See Huber, 669 So. 2d at 1082-83.

Matarranz was found guilty of first-degree murder and burglary. During voir dire the trial court gave a general overview to the prospective jurors of the trial procedures and charges against the defendant. The court asked the prospective jurors if any of the charges against the defendant would render them to think “you just could not be a fair juror.” A Juror, along with other prospective jurors, raised her hand “and responded that she could not be a fair juror because of reservations she held with regard to the defendant’s burglary charge.” The trial court initiated questioning of that Juror, as did the prosecutor and defense counsel (see opinion), along with follow up questions to the Juror the next day. On the next day, the Juror believed she had an open mind and that she could be fair. Defense counsel moved to strike the juror for cause; the judge denied the cause challenge; and later “defense counsel was forced to use his sixth peremptory challenge to strike the Juror.” After exhausting his final peremptory challenge, defense counsel “stated that the trial court had erred because five of the ten jurors he had removed peremptorily should have been removed for cause.” He listed the jurors by name. Defense counsel requested an additional peremptory challenge, again listing the jurors he believed should have been removed for cause and then listing another juror he would strike if granted an extra peremptory challenge. The request was denied. Defense counsel renewed “all our motions and objections and challenges previously made” before the jury was sworn in. On appeal, the 3^rd DCA affirmed Matarranz’s convictions and specifically addressed the trial court’s denial of a challenge for cause against the Juror but concluded “that, after having conducted a ‘thorough review of the record,’ the trial court did not commit manifest error when it determined that the Juror was competent to serve.” The 3^rd DCA listed fours statements “that the Juror consistently indicated” and also “identified that the Juror had stated ‘anything that happened to me in the past has nothing to do with this case.’”

The Court disagreed with the court below and held “that the Juror demonstrated that she could not fulfill her role as a fair and impartial arbiter and thus she should have been excused for cause.” The Court quashed the 3^rd DCA’s decision, remanded for a new trial, and clarified “the law surrounding peremptory challenges and the removal of jurors for cause.” The Court approved the 4^th DCA’s decision in Huber.

Over the years, trial court discretion with regard to the removal of compromised jurors has at times become so broad that our courts have lost sight of the principles of law that undergird juror-qualification determinations. This, however, need not be the case. Partialities, biases, prejudices, and misconceptions are not all of one character and can be distinguished as prohibitive or non-prohibitive to jury service. Today we clarify the law to delineate this distinction (emphasis added).

We clarify today that courts and counsel are correct to engage prospective jurors in a dialogue addressing their partialities, biases, prejudices, and misconceptions when they are rooted in a lack of familiarity with the judicial system as part of an effort to rehabilitate in contrast to those immutable opinions and attitudes that arise from personal life experiences and firmly held beliefs. Florida law “allows ‘the rehabilitation of jurors whose responses in voir dire raise concerns about their impartiality.’”

. . . it is necessary for courts to distinguish between those biases and beliefs that define a prospective juror—and thus produce little if any actual change in him or her from intensive questioning—and those in which information and explanation may provide a prospective juror with the “requisite familiarity” and insight into the judicial process that will render him or her competent to serve.

When a juror expresses his or her unease and reservations based upon actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to “rehabilitate” a juror into rejection of those expressions—as occurred here.

Justice Canady dissented with an opinion, in which Justice Polston concurs.

Bureau Chief Richard Polin and Assistant Attorney General Douglas Glaid represented the state.

Opinion: sc11-1617.pdf

IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE
PROCEDURE 9.140. SC13-1492. Filed September 26, 2013.

According to the report, chapter 2013-162, Laws of Florida, which became effective July 1, 2013, substituted the terms “intellectual disability” and “intellectually disabled” for the terms “mental retardation” and mentally retarded” throughout the Florida Statutes. The Committee proposes amending subdivision (c)(1)(I) (Appeals by the State; Appeals Permitted) of rule 9.140 to conform to the statutory changes by replacing the term “mentally retarded” with the term “intellectually disabled.” The Board of Governors of The Florida Bar unanimously approved the proposal.

After considering the proposed amendment and reviewing the relevant legislation, we amend the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendment shall take effect immediately upon the release of this opinion. Because the amendment was not published for comment prior to its adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

Amendment: sc13-1492.pdf

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012-06. SC12-2296. Filed September 26, 2013.

New instructions 19.7 (Official Misconduct) and 26.9 (Money Laundering).

Amendments: sc12-2296.pdf

Remanded for new trial: jury instructions on self-defense were erroneous.

Alexander v. State, 1D12-2469. Opinion filed September 26, 2013.

Alexander was “convicted of aggravated assault with a deadly weapon for firing what she described as a warning shot intended to make her husband desist from physical abuse.” Alexander argued that her judgment and twenty-year sentence “should be reversed on multiple grounds.”

At trial, Alexander testified that her husband (Mr. Gray) “accused her of infidelity and questioned the paternity of her week-old baby.” Alexander testified she locked herself in the bathroom, “but Mr. Gray broke through the door, grabbed her by the neck, and demanded to know when she last had sexual relations with her ex-husband.” Mr. Gray shoved her hard into the door. They struggled for a while and she was able to break free and ran into the garage. Alexander testified that she could not leave the premises because she “could not get the garage door open.” She got a gun (she had a permit) from the glove compartment of a vehicle in the garage and walked back in the house. She held the gun by her side because she didn’t know whether Mr. Gray was still in the house or not. “As she walked into the kitchen, Mr. Gray saw the gun, and charged her ‘in a rage,’ saying, ‘Bitch, I’ll kill you.’ Startled, she raised the gun into the air and fired. Mr. Gray ran.” Alexander testified “she was forced to fire her gun into the air as a warning shot because it was the ‘lesser of two evils.’” Alexander also testified that “the firing of the gun was the culmination of a year-and-a-half’s abuse at her husband’s hands.” She testified to several violent altercations that caused injuries and required hospitalization. She obtained a domestic violence injunction against her husband and he still attacked her when she was five months pregnant with their child. During all altercations, he threatened to kill her.

The 1^st DCA noted “[t]he fundamental question before the jury, the issue on which the jury’s verdict hinged, was self defense.” “The trial judge instructed the jury on self-defense but did so in language that was problematic in two important respects, and which constituted fundamental error as a result. First, as regards aggravated battery, the jury was instructed as follows:”

A person is justified in using deadly force if she reasonably believes that such force is necessary to prevent:
1. imminent death or great bodily harm to herself or another, or
2. the imminent commission of Aggravated Battery against herself or another.

AGGRAVATED BATTERY
To prove the crime of Aggravated Battery, the following two elements must be proven beyond a reasonable doubt. The first element is a definition of battery.
1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will.
2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSA DANIELLE ALEXANDER.

(Emphasis added.)

The 1^st DCA concluded: “By including the phrase ‘beyond a reasonable doubt’ when giving the instruction on the aggravated battery prong of the self-defense instruction, the trial court improperly transmuted the prosecution’s burden to prove guilt beyond a reasonable doubt into a burden on the appellant to prove self-defense beyond a reasonable doubt, depriving her of a trial under the correct rule.” The 1^st DCA also found “the trial court erred in giving the self-defense instruction when it indicated self-defense applied only if the victim suffered an ‘injury.’”

The 1^st DCA reversed and remanded for a new trial.

Assistant Attorney’s General Giselle Lylen and Jay Kubica represented the state.

Opinion: 1D12-2469.pdf

“Even if probable cause to arrest D.S. for loitering and prowling did not exist, the search incident to that arrest is still lawful as there was probable cause to arrest him for another charge, burglary.

D.S.. a juvenile, v. State, 3D09-2558. Opinion filed September 25, 2013.

D.S., appealed a withhold of adjudication of delinquency entered following an adjudicatory hearing where he argued “the trial court erred in not granting his motion to suppress marijuana discovered incident to his arrest for loitering and prowling.”

At the suppression hearing, Officer Collier, the arresting officer, testified that he went to the location in regards to a burglary in progress call he received. Once he arrived at the scene, D.S. had already been taken out of the home and detained, “along with other juveniles found inside the unoccupied home, on suspicion of burglary.” Officer Collier testified he interviewed a witness at the scene “who observed D.S. and two others breaking down the door to the home in which D.S. was found.” Officer Lambert testified that when she arrived D.S. was being escorted out of the home and that he was being “detained in reference to the investigation of the call on a burglary in progress.” Prior to placing D.S. in the squad car, Officer Lambert searched D.S. and found a baggie of marijuana in his pocket. D.S. was arrested by Officer Collier for loitering and prowling as well as possession of marijuana. D.S. argued there was no probable cause to arrest him for loitering and prowling and the “search incident to his arrest for loitering and prowling was illegal.”

The 3^rd DCA disagreed by concluding that “probable cause existed to arrest D.S. for burglary.” “Even if probable cause to arrest D.S. for loitering and prowling did not exist, the search incident to that arrest is still lawful as there was probable cause to arrest him for another charge, burglary.” See Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005)(finding that there existed, notwithstanding the officers’ mistaken and contrary belief, probable cause to arrest the defendant on a charge of burglary). The 3^rd DCA also noted in “Thomas v. State, that, “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Therefore, the 3^rd DCA concluded that “even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him for burglary, the search incident to arrest was lawful.”

The 3^rd DCA affirmed. “. . . the fact D.S. was arrested for loitering and prowling does not render the search incident to arrest unlawful, or the marijuana discovered pursuant to that search subject to suppression as the fruit of an illegal search and seizure.”

Assistant Attorney General Natalia Costea represented the state.

Opinion: 3D09-2558.rh.pdf