Criminal Law Alert

Admission of out-of-court victims’ statements was harmless error; statements in question “did not have a substantial and injurious effect on the jury verdict.”

Hodges v. Attorney General, et al, 07-11943, Opinion filed November 9, 2007.

Hodges, a Florida death row inmate, after having his 28 U.S.C. § 2254 relief from his murder conviction and death sentence denied by the district court, along with a denial for a certificate of appealability (COA), renewed his request for a COA. The 11th Circuit granted the motion as to Grounds I and III and denied the motion as to Grounds II an IV. Hodges, who did not file a motion to reconsider the denial of the COA on Ground II, filed his briefs on the merits arguing Grounds I, II, and III. The 11th Circuit, determining that Hodges “simply chose to flout the clear COA order limiting the issues that could be briefed on the merits,” struck the portions of the brief that addressed Ground II because a COA had not been granted for that issue.

Hodges’ argued that his “constitutional right to confrontation was violated when the state trial court admitted at both the guilt and penalty stages of his trial hearsay statements by the victim, Betty Ricks.” Ms. Ricks filed a criminal complaint against Hodges for indecent exposure. When Hodges could not get Ms. Ricks to drop the charges, he killed her by shooting her twice in the head and neck. The out-of-court statements at the guilt stage consisted to two different detectives testifying to their individual conversations with Ms. Ricks regarding her insistence of pressing charges against Hodges and how “adamant” she was about prosecuting Hodges. The Florida Supreme Court held “that the admission of the victim’s out-of-court statements at the guilt stage was error under Florida law because those statements were hearsay,” however, it was harmless error. Agreeing with the Court, the district court also denied relief on the “confrontation clause claim,” holding this error was harmless because “even without the hearsay statements, there was ample evidence of Hodges’ guilt.” Because the “admission of the testimony in question did not have a substantial and injurious effect on the jury verdict,” the 11th Circuit held the district court “properly denied relief on this claim.”

The record revealed that the out-of-court statements made by the victim and introduced as evidence at the sentence stage was “to prove the statutory aggravating circumstance that the murder ‘was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.’” Section 921.141(1) of Florida’s capital punishment statute allows this type of hearsay evidence to be admitted at the sentencing stage, provided the defendant has an opportunity to rebut any hearsay statements. The 11th Circuit, affirming the Court’s holding that there was no error in the admission of the evidence and adding another ground to their primary holding stating: “The reason the State had to rely on what Ms. Ricks told others in order to prove what Hodges had said and done to her is that she was not available to testify herself. The reason she was not available, or course, is that Hodges had murdered her, a fact proven beyond a reasonable doubt before the sentence stage began.”

Hodges also argued “his constitutional right to be present at all the critical stages of his trial was violated because he was absent from the courtroom at the end of the jury phase of the sentence stage.” The 11th Circuit held that “the state court decision that Hodges waived his right to be present during the final part of the jury phase of the sentence stage of his trial is not ‘contrary to, [nor] . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” 28 U.S.C. § 2254(d)(1).

Assistant Attorney General Katherine Blanco represented the state.

Opinion


Attorney error of failing to notify the court of his changed address is not an extraordinary circumstance warranting equitable tolling.

Wainwright v. Secretary, DOC, et al., 06-13453, Decided November 13, 2007.

Wainwright’s conviction and death sentence were affirmed by the Florida Supreme Court and certiorari was denied by the United States Supreme Court. The Court issued its mandate on March 17, 2005, after denying Wainwright’s Rule 3.850 and writ of habeas corpus in November 2004 and his rehearing motion in December 2004. On March 29, 2005, six days after the statute of limitations ran, Wainwright filed his federal habeas petition. Wainwright lost his argument that he was entitled to equitable tolling when the district court granted summary judgment to the State on March 10, 2006. The district court denied Wainwright’s Rule 59(e) motion to alter or amend the judgment in May 2006, and the 11th Circuit granted a certificate of appealability (COA) on four issues after Wainwright filed a notice of appeal (NOA). The first two issues dealt with appellant review jurisdiction and the last two issues dealt with equitable tolling.

Citing to KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006), “. . . it is well settled that an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding interest was effective to appeal,” the 11th Circuit held that Wainwright’s NOA operated to appeal the underlying judgment; that the NOA was timely filed, and held that “we have jurisdiction to review the district court’s summary judgment order.”

Wainwright argued he was entitled to equitable tolling on the basis of “confusion in the law”and because the “Florida Supreme Court did not send the order denying his motion for rehearing to his attorney’s correct address.”

The 11th Circuit determined that while the circuits were “split on the issue of statutory tolling,” at the time Wainwright filed his habeas petition, “it was perfectly clear in this circuit that the statute of limitations is not tolled while the petitioner seeks Supreme Court review of the state court’s denial of collateral relief.” See Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000). The Supreme Court rejected an identical confusion in the law claim in its decision in Lawrence v. Florida, 127 S. Ct. 1079 (2007). Because Wainwright failed to argue this claim in the district court “as a ground for equitable tolling,” the 11th Circuit held that he failed to “preserve the argument for appeal.” Further, the failure of Wainwright’s attorney to notify the Court of his change of address is “not an extraordinary circumstance warranting equitable tolling.”

Assistant Attorney General Meredith Charbula represented the state.


Opinion

Trial court erred as a matter of law; exigent circumstances (the officers’ peril would increase) existed to justify the twelve second delay from the “knock and announce” to the forcibly entry into the defendant’s home.

State v. Pruitt, 2D06-4006, Opinion filed November 2, 2007.

The State of Florida appealed the trial court’s order granting Pruitt’s motion to suppress the evidence (two firearms, marijuana, heroin, electronic scales, currency, and documents) obtained during the search of Pruitt’s home. Through the combined efforts of the St. Petersburg Police Department, the United States Drug Enforcement Agency (DEA) and the Organized Crime Drug Enforcement Task Force (OCDETF), Pruitt was identified as a “key participant” in a large-scale heroin trafficking operation and as a distributor of heroin in the St. Petersburg area. A warrant was issued and the St. Petersburg Tactical Apprehension and Control Team (TACT) executed the warrant on January 6, 2004 at 5:15 a.m. TACT “waited twelve seconds after knocking and announcing their purpose before forcibly entering the home,” Pruitt moved to suppress the evidence arguing the “forced entry violated Florida’s knock-and-announce statute, section 933.09, Florida Statutes (2003).” The trial court granted the motion holding that the “twelve-second delay between the knock and announce and TACT’s entry was insufficient.” The State appealed arguing exigent circumstances, “specifically law enforcement’s knowledge that Pruitt was a suspect in a murder investigation in which the murder weapon was an AK-47,” justified the short delay.

Section 933.09, Florida Statutes (2003), requires that before forcibly entering a home, law enforcement must first announce their authority and purpose, and second, they must have been refused admittance. “Refusal can be express or implied, and lack of response is deemed a refusal,” Richardson v. State, 787 So. 2d 906, 908 (Fla. 2d DCA 2001). In its analysis, the 2nd DCA concluded that “there is no bright line answer” in Florida’s case law to determine how much time should be allowed “before the lack of response may be deemed by law enforcement officers at the scene to be a refusal,” other than a “reasonable opportunity” to respond. Id. 908.

The record revealed that the affidavit and warrant were issued for further evidence of Pruitt’s drug trafficking business. The “affidavit was prepared to fulfill the probable cause requirement for searching for narcotics and evidence of Pruitt’s heroin business operations, specifically business and phone records.” Pruitt was also under an ongoing active six-month investigation for a murder committed with an AK-47, as such, that information (immaterial to the purpose of the warrant) was given to TACT before the execution of the warrant for planning purposes, “to enable TACT to make on-the-spot decisions as to the best way to execute the warrant at the scene.” Testimony provided by the TACT Commander, at the suppression hearing, revealed that he waited approximately “twelve seconds after his initial knock and announce before calling for a breach of the door of the residence”; that he believed that was a reasonable amount of time to wait; that he knew Pruitt was a violent felon and a suspect in a homicide using an AK-47; that as he was counting up to 10, 11, and 12, he knew that “now the team has been compromised . . . the risk definitely increases where we may return fire . . . ,” and that the TACT team’s “body armor was not capable of stopping rounds from an AK-47,” therefore, the TACT teams’ safety risk would be increased. It was further revealed that the TACT team is used to execute warrants only “with high-risk situations,” and the execution of this warrant on Pruitt’s residence was considered a “high-risk situation in which information was given fitting the criteria where firearms or the subject involved is known to use violence.”

The 2nd DCA concluded that the trial court erred as a matter of law; that exigent circumstances existed that justified TACT’s entry into Pruitt’s house after waiting twelve seconds and reversed the trial court’s order granting Pruitt’s suppression motion.

Assistant Attorney General Jonathan Hurley represented the state.

Opinion

“The prohibition against the use of force to resist an arrest under section 776.051(1) does not apply to post-arrest intake procedures.” Deputies failed to prove they were “acting in the lawful execution of any legal duty,” when they failed to comply with § 901.211(5), when attempting to strip search the defendant.

Perry v. State, 4D01-2049, Opinion filed November 7, 2007.

Perry, arrested on another matter and in the process of being booked was taken into the strip search room. Strip searches are part of the booking process for felony offenses, per the Broward Sheriff’s general policy. Refusing to be stripped searched, an altercation erupted between Perry and two deputies. Perry was tried by jury for the battery on a law enforcement officer and resisting an officer with violence. After closing arguments, Perry moved for judgment of acquittal arguing that “the strip search he allegedly resisted with violence was not performed in compliance with Florida law and thus the deputies were not lawfully executing their duties.” The trial court denied his motion. He was convicted of resisting an officer with violence and acquitted on the other charge. Perry appealed and the 4th DCA affirmed the conviction, relying on section 776.051(1), Florida Statutes, “which prohibits the use of force to resist an unlawful arrest, and disagreed with ‘appellant’s argument that the rule prohibiting the use of force against a known police officer is limited to an arrest situation.’” Perry v. State, 846 So. 2d at 587 (Fla. 4th DCA 2003).

Presenting the issue of “whether the statutory prohibition against the use of force to resist an arrest applies apart from arrest scenarios,” Perry obtained review in the Florida Supreme Court. Based upon its decision in Tillman, the Court held that “it did not and quashed our decision,” and “remanded Perry for reconsideration.”

Section 901.211(5), Florida Statutes (1997), states: “No law enforcement officer shall order a strip search within the agency or facility without obtaining the written authorization of the supervising officer on duty.”

The 4th DCA held that “the prohibition against the use of force to resist an arrest under section 776.051(1) does not apply to post-arrest intake procedures such as the strip search in this case.” Because the state failed to prove the deputies were in compliance with section 901.211(5), it failed to prove that when the officers attempted to strip search Perry, they were acting “in the lawful execution of any legal duty.” Reversing Perry’s conviction and sentence, the 4th DCA remanded with directions to discharge Perry. “A strip search conducted in violation of the statutory requirements set forth in section 901.211, in essence, establishes police misconduct and constitutes a Fourth Amendment violation.” State v. Augustine, 724 So. 2d 580, 581 (Fla. 2d DCA 1998).

Assistant Attorney General Laura Fisher Zibura represented the state.

Opinion