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Legal Updates
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Editor: Will Hanlon & Charlie Lambert
Profession: Tampa Defense Attorneys
Florida:Evidence:State of Mind Exception
Category: Legal Updates
Under Florida Statute 90.803(3)(a)2 when someone describes an intent to do an act and there is sufficient evidence to conclude that the act was executed the statement is admissable under the state of mind exception to the hearsay rule. Ibar v. State, 31 F.L.W. S149 (Fla. 3/9/2006) The defendant in Ibar was convicted of three counts of first degree murder. During the trial the State called a witness that testified that Alex Hernandez (a man the defense proposed committed the murders) intended to go out of town on the weekend of the murders. The State ultimately argued that Mr. Hernandez was properly ruled out as a suspect because he was out of town. The Florida Supreme Court ruled that the statement made by the state's witness was hearsay because there was no evidence introduced by the state that supported the declarant's (Hernandez) intent to actually go to North Carolina.
Limiting Hypotheticals in Jury Selection
Category: Legal Updates
The Third District reaffirmed the rule that permits defense counsel to use hypotheticals in jury selection so long as they do not relate to the facts of the case. Ferreiro v. State, 31 F.L.W. D2166 (3d DCA 8/16/2006). In Ferreiro the defendant was charged with sexual battery on a minor under 12 years of age. Defense counsel asked prospective jurors if they believed "a girl could come to court and lie about being raped". The trial judge would not permit defense counsel to say "a girl" because it was too close to the facts of the present case. The appellate court cited an old Florida Supreme Court case that first addressed these types of issues in voir dire. In Pope the Florida Supreme Court stated that hypothetical questions are permitted in voir dire so long as they make a correct, "reference to the law of the case that aid in determining whether challeges for cause or peremptory are proper". Pope v. State, 94 So. 865 (Fla. 1922).
Officer Must Inform Suspect of Reason for Arrest
Category: Legal Updates
A police officer must inform the suspect of the reason for his arrest. If an officer fails to inform a defendant as to why he is being arrested it could make the arrest illegal. While the failure to inform the suspect does not make the arrest per se illegal it is a factor that can be used by the jury when determining whether the defendant's actions were reasonable under the circumstances. When evidence is introduced at trial that the defendant only asked the officer why he was being arrested when the officers struck him and handcuffed him, the defendant is entitled to an instruction on the provisions of Florida Statute 901.17. Albury v. State, 30 F.L.W. D2242 (2d DCA 9/21/2005). The Second District ultimately felt the jury was entitled under statute 901.17 to determine whether the defendant asking the officers the reason for his arrest was a legitimate lawful action or resisting arrest under the circumstances.
"911" Call Admissable Without Victim's Testimony
Category: Legal Updates
A 911 call that is admitted under the excited utterance or spontaneous statement exception under 90.803(1)and (2) is not "testimonial" hearsay and is admissable as evidence. Bartee v. State, 31 F.L.W. D815 (5th DCA 3/17/2006). The Fifth district relied on the analysis set out in Crawford v. Washington by the United States Supreme Court. By contrast the 5th DCA ruled that the statements made to law enforcement by the victim were testimonial in nature, and not admissable. The Court felt that the statements were made after the defendant had left the scene, and the statements were in direct response to police questioning. In addition, the victim had every reason to believe that her statements could be used to prosecute the defendant.
Once the Court determined that the statements to police were testimonial in nature the court then addressed the second part of the analysis. Neither side was ever able to produce the victim as a witness, and she was never subject to cross examination. As a result, the statements made by the victim to law enforcement should not have been admitted. While Mr. Bartee's case was reversed on appeal, the reversal only pertained to the burglary charge and the convictions as to false imprisonment and battery were upheld.
Florida Supreme Court Defines Out of Court Identification as Non-Hearsay
Category: Legal Updates
Florida's Supreme Court recently specified what would qualify as non-hearsay with regards to statements of identification. Ibar v. State, 31 F.L.W. S149, (Fla. 3/9/2006). Many courts have permitted witnesses to testify to out of court statements of identification made by victims without regard to circumstances of the statements. The Court in analysing section of 90.801(2)(c) of Florida's evidence code concluded that the only statements that would qualify as non-hearsay under that section would be one that occurred shortly after the victim actually observed, or "perceived" the person being identified. The Court felt that this type of statement is non-hearsay only when shortly after the criminal episode the victim sees the defendant and says, "that's the man". "To extend the rule that far would permit countless repetitions by a witness to others, regardless of time and place, of the witnesses' belief as to the guilty party, a result we do not believe intended by the drafters of the rule".
Single photo in Lineup not Unnecessarily Suggestive
Category: Legal Updates
The 3rd DCA ruled that while using a single photo to identify a defendant was unnecessarily suggestive it did not warrant suppression of the defendant's identification. Gillis v. State , 31 F.L.W. D1520 (3d DCA 5/31/2006). Both witnesses to the murder of the victim were familiar with the defendant. This fact along with other factors...i.e. ((1) the oppurtunity of the witness to view the suspect at the time of the crime, (2) the witnesses degree of attention, (3) the accuracy of the witnesses prior description of the suspect, (4) the level of certainty demonstrated by the witness at the time of the confrontation, (5) and the legth of time between the crime and the confrontation, caused the 3rd DCA to agree with the trial judge's decision to deny the defendant's motion to suprress. These factors were set out the in the United States Supreme Court decision of Neil v. Biggers. Neil v. Biggers,409 U.S. 188, 199-200 (1972). It seems the single photo ID many times will be suppressed, unless circumstances similar to this case are present.
Tampa DUI Case Law
Category: Legal Updates
The First District Court of Appeals cited the Bender case to support its decision to find fundamental error in Leveritt v. State. Leveritt v. State, 31 FLW D424, (Fla. 1st DCA 2006). "For evidence of a person's blood alcohol level to be admitted outside of the impled consent law and regulations promulgated thereunder, the party seeking the introduction of the evidece must satisfy the three-pronged common law test set forth in State v. Bender, 382 So.2d 697, 699 (Fla. 1980)". The proper predicate to admit scientific evidence of impairment requires that: (1) the test was reliable, (2) the test was performed by a qualified operator with proper equipment, and (3) expert testimony was presented concerning the meaning of the test.
Florida Supreme Court upholds Search Incident to Illegal Stop
Category: Legal Updates
The Florida Supreme Court ruled recently that an illegal stop may not invalidate the search of a defendant's vehicle where he has an active warrant for his arrest. State v. Frierson, 31 F.L.W. S81(Fla. 2/9/2006). The Court followed the U.S. Supreme Court's analysis set out in Brown. Brown v. Illinois, 422 U.S. 590 (1975). In Brown the U.S. Supreme Court considered three factors in determining whether the initial illegal detention tainted the subsequent search (1) the time elapsed between the llegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.
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Negotiated Plea With State Prevents Mitigation
Category: Legal Updates
The 2nd DCA recently readdressed a sentencing issue involving negotiated plea agreements with the state. Where a defendant enters a negotiated agreement with the state attorney, especially where he receives a below guidelines sentence, he cannot later request the court mitigate his sentence. State v. Szempruch
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Initial Coercion May Not Exclude All Statements
Category: Legal Updates
The 4th DCA has ruled that although an initial confession in a police station may have been coerced and correctly suppressed by the trial court, a subsequent statement surreptitiously taped by the police is lawfully admitted as long as the initial illegality is" sufficiently attenuated" from the second statement. Lundberg v. State
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Exclusionary Rule does not apply to illegal strip search
Category: Legal Updates
The second district court of appeals in Jenkinsv. State certified a conflict with the fourth district when it ruled that suppression of evidence is not the proper sanction when law enforcement violates the strip search statute (Florida Statute 901.211(1)). The fourth district addressed this issue in 1996 when it ruled in D.F. v. State that evidence collected in violation of the statute should be suppressed. Until now the second district seemed to agree with the 4th district's interpretation of the statute. The first question brought to mind by the Court's ruling is how could the search violate the strip search statute and not violate the 4th Amendment?
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