Criminal Law Alert

Trial court correctly determined that the rule 3.853 motion failed to demonstrate that the DNA sought by defendant would have been admissible during the trial.

Overton v. State, SC04-2071, SC05-964, and SC06-237, Opinion filed November 29, 2007.

Overton, who was convicted and sentenced to death for the first-degree murders of Susan and Michael MacIvor, sentenced to fifteen years imprisonment for the killing of an unborn child, sentenced to life for the burglary of the MacIvor home and sentenced to life for the sexual battery of Susan MacIvor, sought a review of the denial of his rule 3.851 postconviction relief motion, appealed the trial court’s denial of his second postconviction motion for DNA testing, and petitioned the Court for a writ of habeas corpus.

Arguing six issues, Overton claimed he was denied a full and fair evidentiary hearing at the postconviction stage. Overton alleged the trial judge acted as a “second prosecutor,” when he asked questions of the witnesses during the evidentiary hearing. The record revealed that there wasn’t any bias displayed in favor of Overton or the State and that the court’s questioning of the witnesses was to “clarify certain points after both parties asked initial questions and also to gain further knowledge into background information with regard to the witnesses.” Because there were no objections raised, Overton’s arguments which alleged “improper conduct by the trial judge at the evidentiary hearing” were procedurally barred. Further, the Court concluded that “the trial court’s refusal to rush through the evidentiary hearing and the decision to ask questions to ensure that all pertinent information was on the record helped facilitate a full and fair hearing,” therefore, Overton’s claim lacked merit.

Overton alleged the trial court erred in its partial denial of the postconviction DNA testing motion requesting DNA testing of the hairs attached to the tape used to bind Susan MacIvor. Overton asserted that the hairs “adhered to the tape only as fresh layers of tape were unwrapped from the roll.” Overton argued that the results of the DNA testing would prove the hairs were not his or the victim’s and would prove the true identity of the perpetrator, thus, proving he was not at the crime scene.

The record revealed that the trial court did grant the DNA testing of the sexual assault kit and the fingernail scrapings. In its denial of the DNA testing of the hair found on the tape used to bind Susan, the trial court found that “in terms of relevance, unless the results showed the hairs to be those of the Defendant, the results would not be relevant and hence, not admissible.” Further, the trial court held that had the DNA evidence been admitted at trial, “there is no reasonable probability that the Defendant would have been acquitted or would have received a lesser sentence.” The trial court noted there was no way to determine where the tape came from or how the hair became attached to the tape, and as such, the trial court held that the “DNA testing is of no use or significance.”

The Court concluded that “regardless of where the tape originated,” Overton’s assertion of how the hair got on the tape “does not establish the requisite nexus between the hair and the crime.” Overton’s assertion that if the hair does not belong to him or the victim’s, then it belongs to the person that committed or participated in the crime, is “far too tenuous because there is no way to determine when, why, where, or how the hairs attached to the tape.” Based on the record and evidence presented, the Court determined that the DNA testing would not establish any connection between the person whose DNA matched the hair and the actual murders. The record actually demonstrated that “the hair did not visually match Overton or the victim’s,” and the fact that the hair did not come from Overton “had no bearing on Overton’s death sentences.” The Court held that the “trial court correctly determined that the rule 3.853 motion failed to demonstrate that the DNA sought by Overton would have been admissible during the trial.”

Because the trial court was not presented with a “specific argument that the DNA evidence should be excluded due to an alleged broken chain of custody,” the Court held that Overton’s ineffective assistance of appellant counsel claim for failing to challenge the denial motion to exclude the DNA evidence was procedurally barred. The motion presented at trial was to exclude the DNA evidence based upon alleged “faulty protocols or procedures,” not to exclude the DNA evidence based upon an alleged broken chain of custody.

Assistant Attorney General Celia Terenzio represented the state.

Opinion


Trial court “misapplied the ‘plain-feel’ doctrine in holding that the removal and search of the M&M container was permitted.”

Crawford v. State, 2D06-557, Opinion filed November 28, 2007.

Crawford, conviction for possession of cocaine, appealed the denial of his dispositive suppression motion arguing that the crack cocaine was seized improperly after he consented to a patdown.

The record revealed that Crawford was a passenger in a vehicle that was stopped by Officer Bush of the St. Petersburg Police Department for running a stop sign. After exiting the vehicle, Crawford kept “fumbling at his waistband” and the officer noticed a “cylindrical shaped bulge approximately five or six inches long and a few inches wide” in Crawford’s right pants pocket. Officer Bush testified that Crawford’s “behavior was making him nervous,” and Crawford consented to his request for a patdown. The officer testified that during the patdown he “felt the cylindrical tube and immediately recognized it as a cylindrical M&M candy container,” that the container “rattled” when he patted it, and that he knew from the sound of the rattle that the container contained cocaine. Officer Bush removed and opened the container and found ten pieces of crack cocaine. The officer further testified that he had worked narcotics investigations for ten years, he had more than “100 arrests where crack cocaine was found inside cylindrical candy containers,” and that he had “never seen anything other than crack in those containers.” Officer Bush testified that he did not observe Crawford involved in any criminal activity, nor was any evidence presented to suggest that.

In its analysis, the 2nd DCA reviewed the two exceptions that would validate a warrantless search: “consent and the ‘plain-feel’ doctrine,” along with evaluating whether probable cause existed to justify the search.

In Minnesota v. Dickerson, 508 U.S. 366, 375-376 (1993), the Supreme Court explained “if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized.”

The 2nd DCA concluded that Officer Bush requested and was given consent to patdown Crawford out of concern for officer safety; that once Officer Bush identified the bulge in Crawford’s pocket as a candy container and not a weapon, the officer “had no more authority than that reasonably conferred by the terms of Mr. Crawford’s consent.” Further, because the officer could tell by touch that the object was a cylindrical candy container but could not tell by touch what was inside the container, the 2nd DCA concluded that Officer Bush did not meet the requirements established for the “plain-feel” doctrine in Dickerson.

The 2nd DCA held that the officer’s search of Crawford’s pocket was “beyond the scope of a weapons check and the subsequent seizure and opening of the M&M container were constitutionally invalid actions.”

Assistant Attorney General Katherine Cline represented the state.

Opinion


Order granting suppression of evidence is reversed; once law enforcement officers smell the odor of marijuana coming from the open windows of the vehicle, they have probable cause to search the occupants of that vehicle.

State v. Jennings, 4D06-3518, Opinion filed November 21, 2007.

The State appealed the order granting the motion to suppress the evidence of cocaine found on Jennings during the search of his person.

Jennings was a passenger in a vehicle that was stopped by two Broward County deputy sheriffs, for speeding and having no tag light. As the officers approached the vehicle, they smelled “the odor of marijuana coming from the open windows of the vehicle.” Both the driver and Jennings were asked to exit the vehicle. The driver, when questioned, told one law enforcement officer that he had marijuana in the driver’s side visor. Because Jennings was acting “very jittery,” the other officer asked for consent to search his person. Jennings only responded with a nodding gesture of his head, lifting up his arms and shrugging his shoulders. A packet of cocaine was found on his person.

Jennings filed a motion to suppress the cocaine evidence arguing that once the officers knew there was marijuana in the vehicle, they did not have probable cause to search his person. The trial court granted the suppression motion finding that “based on the totality of the circumstances the search was not done for officer safety purposes and the consent indicated by a shrug was simply an acquiescence to police authority.”

The record revealed that both officers testified they smelled marijuana coming from the vehicle as they approached it and testified to their training and experience “in detecting marijuana by smell.”

The 4th DCA determined that Jennings’ argument was meritless because “[t]he deputies were not required to rely on the statements of a suspect to assure them that the only violation of the narcotic’s law consisted of what the suspect tells them.” Once the officers smelled the marijuana, they had probable cause to search the occupants of the vehicle. “Probable cause exists where ‘the facts and circumstances within their (the officers’) knowledge . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’” State v. Betz, 815 So. 2d 627, 633 (Fla. 2002).

The 4th DCA held the officers had probable cause to search the occupants of the vehicle and that the cocaine was found during a lawful search.

Assistant Attorney General Monique L’Italien represented the state.

Opinion


Double jeopardy bars further prosecution because the trial court declared a mistrial without a manifest necessity to do so.

Webster v. State, 4D07-3307, Opinion filed November 21, 2007.

Webster, charged with first degree murder (count one), robbery with a deadly weapon (count two), and grand theft (count three), filed a motion to dismiss count one on double jeopardy grounds, after the trial court declared a mistrial, sue sponte, relying on Rubi v. State, 952 So. 2d 630 (Fla. 4th DCA 2007). Webster then petitioned for writ of prohibition to prohibit the further prosecution on the charges of first degree murder against her.

The record revealed the trial commenced in April 2007 and on May 7, 2007, jury deliberations began. Two notes went out to the judge on the first day of deliberations. On the second day, a third note went out indicating “a few of the jurors were not willing to compromise to a lesser charge in count one and sought guidance as to how to proceed.” After meeting with Webster and the jury, “the court determined that a jury deadlock instruction would be appropriate.” An Allen charge was read to the jury and afterwards the deliberations resumed. See Allen v. United States, 164, U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). A fourth note requested a break and the fifth note requested “a better explanation of principals,” and requested that a “[j]uror wants to know what happens to Mary Webster if there is a mistrial (hung jury) on the first count.” The judge, believing the note could be interpreted as a second deadlock note and believing only one juror was holding out, discussed the issue with the parties and relying on Rubi, sua sponte, “declared a mistrial as to count one.”

In its analysis of Rubi and the instant case, the 4th DCA determined that the lower court “misapplied Rubi in two crucial aspects.” In Rubi, the note stated there was a single holdout juror who questioned the evidence against the accused. In the instant case, the note was vague as to the number of holdout jurors and the question being asked “concerned the consequences of a mistrial,” which was not of the same “magnitude” as the Rubi inquiry.

The 4th DCA determined the “trial judge made a good faith attempt at following the law,” however, he should not have assumed that there was a single holdout juror and should not have assumed the “ambiguous” fifth note “to be a second deadlock note.” The trial judge should have requested “clarification from the jury regarding the ambiguous note.” Potter v. United States, 534 A.2d 943, 946 (D.C. Cir. 1987)(stating that a trial court is not required to answer an ambiguous note without seeking clarification). The district court determined that the other option available to the trial judge would have been to instruct the jury “that it should not concern itself with the ramifications of a mistrial.” See Conley v. Very, 450 F.3d 786, 788 (8th Cir. 2006).

The 4th DCA held that because the lower court “declared a mistrial without there being a manifest necessity to do so, the declaration had the effect of an acquittal. As such, we grant petitioner’s petition for writ of prohibition and order count one against her be dismissed.”

Assistant Attorney General Laura Zibura represented the state.

Opinion


Trial court erred in granting the motion to dismiss because the State presented a prima facie case.

State v. Hinkle, 4D06-4527, Opinion filed November 28, 2007.

Hinkle, charged with unlawfully, and knowingly, carrying a concealed firearm on or about his person, contrary to section 790.01(2), Florida Statutes (2006), filed a motion to dismiss arguing that the “undisputed facts failed to establish a prima facie case.” The State, not filing a traverse, maintained that “the issue was one of law as to whether the facts constituted carrying a concealed weapon.” The trial court granted the motion and the State appealed.

Hinkle was picked up for speeding and when the officer approached the vehicle, Hinkle stuck both hands out of the window and told the officer that he had a firearm in the vehicle and did not have a concealed weapons permit. The firearm was under a bouquet of flowers on the front passenger seat.

A concealed firearm, per Section 790.001(2), F.S., is defined as “any firearm . . . which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”

The record revealed that the firearm was readily accessible to Hinkle because it was on the seat next to him and that it was covered by a bouquet of flowers “which had to be removed to reveal its presence,” as such, the 4th DCA concluded that the State presented a prima facie case and held that the trial court “erred in granting the motion to dismiss.”

Assistant Attorney General Diane Medley represented the state.

Opinion