Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Recent Wins

My client was arrested for Felon in Possession of a Firearm in Tampa. Under normal circumstances this offense doesn't look too ugly. Yes, it's a level 5 second degree felony, and the maximum sentence you could receive is 15 years in Florida State Prison, but it only scores probation without a prior record or any aggravating factors. This case involved some aggravating factors that prompted the State Attorney to charge my client with Felon in actual possession of a firearm. The "actual" possession obviously means that the State has evidence that will prove that the firearm was at some point not just in the felon's vehicle or in his house, but on his person. The "actual" possession is a characteristic that carries a 3 year minimum/mandatory sentence in Florida State Prison.

FACTS: The client was cruising Ybor City at about 3 a.m. on a Saturday night. Many kids are exiting the clubs at this hour because of a city ordinance. Ybor City has a reputation for crime, and especially at this hour. As a consequence, the City of Tampa stations a number of police officers in the parking lots outside these clubs to keep order. My client was driving westbound near the parking lot outside Club Empire. His passenger had an altercation with a passer-by that caused him to exit his vehicle. According to the police report the defendant (my client) exited the driver's side of his vehicle and pulled out a Tech-9 from his trunk. A tech-9 is a light weight uzi-type firearm that can be easily modified to fire automatically. It can also hold a large clip of ammunition. The police report states that an anonymous bystander told the police that the driver "just pointed an uzi at us".

Upon hearing this information from the bystander seven or eight police officers chased the vehicle on foot through the parking lot behind the Tropicana Restaurant. My client, believing the group of people from the first encounter was still chasing him, moved quickly through the parking lot avoiding a number of other drivers. The main investigating TPD officer made a number of representations in his police report about the chase. He claimed that our client stopped his vehicle in the parking lot. According to the investigating officer, he ran up to the vehicle which was stopped in the parking lot and ordered the driver to stop. His report states that the driver and passenger both turned, and made eye contact as he yelled, "STOP, POLICE". The driver then reached for something under his seat, and accelerated out of the parking lot. Almost all of these statements were directly contradicted by his fellow officers who were running right behind him. The client's statement, which was confirmed by the other officers testimony, was unaware that the officers chasing him through the parking lot. Upon exiting the parking lot he passed a number of other officers on horseback and drove north against traffic. Once the client saw overhead lights flashing behind him he pulled over immediately. After he was stopped, the client was arrested for fleeing and attempting to elude police. During a search incident to that arrest the police gained access to my client's trunk. Law enforcement was able to recover the following contraband from a book bag in the trunk:

1) .22 revolver
2) Box of .22 ammunition
3) 2 boxes of 9 millimeter ammunition
4) A 30 round clip of 9 millimeter ammunition (that fit the Tech 9)
5) A machete
6) A bullet-proof vest

One thing the police failed to recover initially was the Tech 9. The client and the passenger were questioned about the Tech 9, and both denied having it in their possession. At some point during the search of the vehicle Tampa Police Officers found a 30 round clip that could easily fit a Tech 9. At that moment law enforcement was convinced that the Tech 9 had been in there possession. They let the passenger go, and arrested my client. A crime scene technician was asked to retrace the vehicle's path of travel with a metal detector looking for the Tech 9 in bushes on the median.

My client was questioned about the circumstances surrounding his earlier altercation, and he stated that once he saw his passenger get into a fight he got out of the car and "attempted to pull out the revolver in the trunk" to scare them. Based on that information, and the fact that our client had a prior felony conviction, the police also charged him with felon in possession of a firearm. Some time later the tech 9 was found in some bushes on the median down the same path of travel taken by the client.

Prior to trial we filed a motion to prevent the State Attorney from mentioning any of the contraband found in the book bag (except for the .22 revolver), and the Tech 9. While Florida case law gives the State Attorney a lot of latitude to modify their charging document before and sometimes even during trial depending on the circumstances, the State's charging document only listed one felon in possession of a firearm charge. The charging document only stated "a firearm" (it never specified whether the firearm was the tech 9 or the .22 revolver). The state has the ability to file one charge of felon in possession of a firearm and fashion the charging document in such a way that allows the jury to choose whether the defendant was in possession of either one of the firearms. The State never modified their charging document in this way. For strategic reasons which would take too long to discuss in this article we did not file a Motion for Statement of Particulars before trial. Sidenote: The State never listed the co-defendant as a witness. He was critical to proving the Tech 9 was in my client's possession. Any attention drawn to that fact, i.e. A Motion for Statement of Particulars could have caused the State to list the co-defendant as a witness. Nevertheless, we objected to the admissibility of the Tech 9 and the rest of the contents of the book bag. Our argument was three-fold:

First, despite the circumstantial evidence showing the Tech-9 was in the vehicle, there was not enough evidence to prove our client was ever in possession of the Tech-9. Second, the State filed a charging document that specified only one felon in possession of a firearm charge. Third, the Tech 9 was not listed in the charging document, and therefore should not be mentioned or introduced into evidence during the trial. The State should not be entitled to enter two guns into evidence to prove one charge. The Court over our objection, allowed the State to introduce most of the contents of the book bag (ammunition, clips), and the Tech-9 into evidence.

For the benefit of the lay person the purpose behind filing a motion-in-limine prior to trial is to prevent mention or the introduction of what you believe to be inadmissible evidence at trial for various reasons. In this case we felt the prior bad acts, or crimes that are not included in the charging document, should not be permitted into evidence (remember the charging document listed one charge of felon in possession of a firearm). We also argued that the ammunition found in the book bag, that was also not included in the charging document, amounted to another crime (felon in possession of ammunition). The Court ordered that everything except for the machete, and the bullet proof vest could be mentioned and/or introduced into evidence at trial. However, the Judge cautioned the State before trial by saying, "I am assuming you will be able to offer evidence that the defendant was in fact in possession of this firearm (Tech 9) during this trial".

During trial the State offered circumstantial evidence that the Tech 9 was in my client's vehicle prior to his stop. However, as expected, they never offered enough evidence to prove he was "in possession" of the Tech 9. At the close of the State Attorney's case we moved for a Judgment of Acquittal as to the Tech 9. The Court granted our motion for judgment of acquittal (essentially a motion to dismiss during trial). The granting of the Motion for Judgment of Acquittal prompted another defense motion. Because the Court allowed the State to introduce the Tech 9 into evidence, over defense objection, and there was no evidence of possession, we felt the Court should grant a mistrial. This evidence was highly prejudicial, and prevents a jury from fairly weighing the evidence during their deliberations. The Court denied our motion for mistrial, but instructed the jury to disregard all mention of the Tech-9 during trial. No defense attorney on the planet feels this type of curative instruction will ever have its desired effect during jury deliberations.

I apologize for the sarcasm, but I would like to describe what goes through the criminal defense attorney's mind when the judge is instructing the jury on this issue:

You mean you want the jury to forget the machine gun the State Attorney paraded around the court room when he introduced it into evidence? You mean you want the jury to forget the testimony about the 30-round clip found in the book bag in the car that just happened to fit perfectly into the Tech-9 that was eventually found in the bushes on the exact path of travel that my client took before he was pulled over by police?

Needless to say I wasn't bursting with confidence that the jury would follow the Judge's instruction and erase the evidence they heard about the Tech-9 from their minds. Thankfully, I was wrong. The jury did just that. If you want to find out more information about firearm charges call us at 813-228-7095 or link to us at tampa criminal attorney.