Florida Criminal Law Blog

Hearsay Statements offered to Explain Subsequent Conduct

Sun, 22 Jan 2012 15:37:03 -0600

In Walker v. State, the Florida Second District Court of Appeals issued an opinion on January 20, 2012, reversing a conviction in a case involving very serious charges because the trial court had allowed the prosecution to admit "hearsay" statements pertaining to why law enforcement officers developed Mr. Walker as a suspect. Hearsay is definined in Florida as an out of court statement offered in court for the truth of the matter asserted. There are certain exceptions that allows hearsay to be admitted such as when a statement is made spontaneously or in an excited fashion. The policy for allowing hearsay is determined by whether the statement is made under circumstances where it is reliable. On the other hand, the reason why it is generally not admissible is because it gives the accused no opportunity to confront the witness making the statement in violation of confrontation clause of the U.S. Constitution. To not allow someone accused to cross exam the witness making the statement, the accused would not have the ability to challenge the credibility or motivation of the witness for the statement.

The Florida appeals court held specificially: “[I]t is impermissible for the State to have the benefit of statements from mystery witnesses or sources without the defendant having the right of confrontation and cross-examination.” Keen v. State, 775 So. 2d 263, 273 (Fla. 2000). To come within this rule, the testifying witness need not repeat the exact statements of the mystery witnesses or sources but need only give testimony from which such statements may be inferred. Wilding v. State, 674 So. 2d 114, 119 (Fla. 1996). Where the inference from a statement of a mystery witness is that the witness has furnished evidence of the defendant's guilt, the testimony is hearsay and violates the defendant's right of confrontation. Id.

The Florida Supreme Court has rejected the argument that such statements are admissible to explain the police investigation or to establish a sequence of events. Keen, 775 So. 2d at 271. “ ‘[T]he prejudice of out-of-court statements used to relate accusatory information but offered simply to establish the logical sequence of events outweighs the probative value of such evidence, rendering it inadmissible.' ” Id. (quoting Caruso v. State, 645 So. 2d 389, 395 (Fla. 1994)).

See the web site of attorney Jim Jenkins for further information on trial law.

Unanimous Verdicts in Florida State Courts Required

Sat, 10 Sep 2011 05:54:25 -0600

In Florida, and every state in America other than Louisiana and Oregon, in order for the government to convict someone of a crime it must be by a unanimous verdict. What this means in Pensacola or other Florida criminal courts is that all six jurors must be unanimous in their verdict. In Florida criminal courts, only Defendant’s charged with first degree murder are entitled to twelve member juries. There is case law that supports if one of the twelve in a murder case, or one of the six in a non-murder case, becomes for any reason incapable of serving as a jury on the case once the trial has begun, a stipulation between the parties may allow the trial to proceed with a verdict based upon the smaller number of jurors. This rarely occurs because in most cases alternate jurors are selected at the beginning of the trial for the very reason if one of the jurors becomes incapable of serving the alternate will then fill the missing juror's place. People are not told who are or who not alternate jurors are so that all the jurors will pay close attention to the evidence during the trial. However, in Florida, even if less than six or twelve are allowed to reach a verdict, the verdict must be unanimous. In all federal courts, which require twelve member juries is all criminal cases, the verdict must be unanimous. If the defendant in a criminal case chooses, and he or she initiates the waiver, a Florida jury may return a binding less than unanimous verdict. Flanning v. State, 597 So. 2d 864 (Fla. 3rd DCA 1992). (Why on God's green earth a defendant would ever do this, I don't know. I guess an exceptional situation may exist where the defendant feels confident that the majority of jurors are going to find him not guilty; however, in my opinion, at the very least, this "assumption" would have to carefully weighed agaist whether the prosecution would re-try the defendant).

This is not the case in the States of Louisiana and Oregon. In those states, an 11-1 or 10-2, will result in conviction of a criminal defendant. These two state’s non-unanimous verdict requirements were recently "denied review" by the U. S. Supreme Court in Troy Barbour v. State of Louisiana. More practically speaking, Mr. Barbour had requested that the U.S. Supreme Court review the Louisiana state court jury system and mandate it to require unanimous jury verdicts in all criminal cases. This positiion was even supported by "The American Bar Association," generally known as a somewhat conservative organization. The ABA stated in its amicus curie brief that research has shown that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials. The U.S. Supreme Court chose to not even hear the Louisiana case therefore the law remains in Louisiana and Oregon that citizens can be convicted by a less than unanimous jury verdict in criminal cases.

In America, if a jury fails to reach a verdict, which is known as a “hung” or “dead-locked” jury, the State or Federal government has the option of re-trying the defendant. How long a jury deliberates before it is declared “hung” or “dead-locked” is a matter within the discretion of the trial court judge in the State of Florida. Florida Rule of Criminal Procedure 3.560.

Entrapment Defenses in the Pensacola Operation "Blue Shephard"

Thu, 30 Jun 2011 21:27:33 -0600

June 28, 2011

The recent Pensacola Floirda "sting" case dubbed "Operation Blue Shephard" involving primarily young men soliciting through computer communications with undercover law enforcements officers posing as the parents suggesting these young men have sexual relations with their own 12-14 year old children raises significant issues in the way police catch otherwise law-abiding citizens by manufacturing a crime. All of these issues will not be discussed in this forum with cases currently pending. However, some basic issues are discussed below that may apply to some of these cases. There are two types of entrapment; however, again this articles primary purpose is to merely inform the reader of the basics of such a defense.

Entrapment requires that 1) the government induce the individual to commit the crime, and 2) the individual was not predisposed to commit the crime before the government’s involvement. If the individual can prove inducement, burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Demarest , 570 F. 3d. 1232, 1240 (11th Circuit) 2009.

If the government induces someone to respond to their ads followed by very cleverly worded language in emails that induces someone to travel to a location to take part in an illicit transaction the issue of "entrapment" may become a factor. However, regarding predisposition, the Supreme Court of the U.S. has observed that law enforcement may not “implant in the mind of a person the disposition to commit the alleged offense and induce its commission in order that they may prosecute”. Jacobson v. United States 503 U.S. 540, 533 (1992). However, under Jacobson the defense will not succeed when the evidence shows that the government merely provided the individual an opportunity to commit a crime because in such cases the entrapment defense is of little use because the ready commission of the crime amply demonstrates the defendant’s predisposition to commit the crime.

Predisposition is a “fact specific inquiry” and must be decided on a case by case basis. The principles to be considered are:
1. A predisposition finding as supported by the individual’s post-arrest statements and evidence that the individual failed to take opportunities to back out of the transaction;
2. Evidence of prior-related offenses are relevant but not dispositive;
3. Evidence of pertinent legal activity and non-criminal activities will not standing alone support a conviction.

The point of this brief article is that people in Pensacola and throughout Florida in general should remember that an individual is presumed innocent until the prosecution proves, in this type of case, beyond a reasonable doubt that the individual they solicited to commit a manufactured crime was predisposed to commit the crime.

If it were your loved one who had been charged in this case I would hope that you would want the constitutional principles that have protected our citizenry since our nation's inception: that an individual is presumed to be innocent of a crime, the burden of proof is entirely on the government and that the government must prove an individual’s guilt beyond a reasonable doubt before they are subject to going to the penitentiary or being convicted of a crime.

There is much more to the story in many of these cases than what the print or television meida presents to the general public. It is only after a thorough investigtion is conducted into the facts of any case and those facts are presented to citizens who evaluate that evidence and apply the law to that evidence can it be determined if someone is guilty or not guilty. It is a road much less traveled for most of us to withhold judgment after reading sensationalist media reports that only report what, in most cases, is what information law enforcement has released to the media. In the pending prosecution of the Dominique Strauss-Kahn case alleging the potential French President of sexual assault of a hotel maid, from reading the articles, how many of us presumed to be innocent? With the maid's revelations over the telephone to her friend in prison on drugs charges, who had deposited over $100,000.00 into her bank accounts, ‘[D]on’t worry, this guy has a lot of money. I know what I’m doing," is an illustration that initial reports of the media don't tell all the facts.

Florida Supreme Court Limits Canine Search of Automobiles

Fri, 20 May 2011 20:06:43 -0600

On April 21, 2011 the Florida Supreme Court made it more difficult for law enforcement to use a drug detection dog’s “alert” to a vehicle to provide officers “probable cause” to search a car without a warrant. In Clayton Harris vs. State, Florida Supreme Court Case No. SC08-1871 (April 21, 2011) the Court provided a uniform standard statewide in Florida of what the government must prove at a Motion to Suppress the warrantless search of an automobile or person to establish to a trial court that a canine drug sniffing dog is reliable and can thus provide probable cause the warrantless search.

Prior to this decision, in three of the five Florida Districts, including the First Judicial District in which Pensacola, Milton, Shalimar, Defuniak Springs and Destin are located, all that was necessary for the prosecution to prove about the reliability of a dog’s alert was to admit into evidence at a contested motion to suppress hearing that the canine officer had been properly trained to handle the drug sniffing dog and that the dog had received certification to detect certain narcotics. The fact or issue of how many times the dog had alerted falsely had not been a relevant element that the prosecution to prove. In other words, the government had no burden to introduce evidence of the dog’s reliability in the field. In essence, this leaves the Florida motorist subject to the whims of a law enforcement officer merely claiming that his or her dog alerted to the car.

The Florida Supreme Court overruled the decisions in the First, Fourth and Fifth Districts that only required these minimum standards. Now in Florida if the warrantless search of an automobile is performed based upon probable cause provided by a dog alert, the prosecution has the burden to prove by written documentation not only the fact that the dog has been trained and certified to search the interior of the vehicle and the person but that the field performance history of the dog must be proven by the prosecution by admission of this information into the record at the hearing. The Florida Supreme Court stated the following in its holding:
In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. "[S]imply characterizing a dog as "trained` and "certified` imparts scant information about what the dog has been conditioned to do or not to do, or how successfully. . . . to adopt the view of the First, Fourth, and Fifth Districts would be to place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability—evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case. Placing this burden on the defendant is contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. See Doctor, 596 So. 2d at 445. Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog`s alert, the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog`s reliability.”

Search and Seizure at Airports - Pensacola, Florida, National

Thu, 23 Dec 2010 04:50:45 -0600

The Florida First District Court of Appeals on Tuesday, December 21, 2010 gave us some insight as to their interpretation of the Transportation Security Administration's (TSA) authority to search our luggage at airports in Florida. (Higerd v. State, 1st District. Case No. 1D09-4028. December 21, 2010). The First District Court of Appeals reviews trial court decisions from Pensacola, including, but not limited to, Escambia, Santa Rosa, Okaloosa and Walton counties. This is a case of "first impression" in Florida meaning that the issue in this case had not been decided by any appellate court in Florida including the Florida Supreme Court. Unlike many issues that arise in the search and seizure context under the Fourth Amendment even the United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009).

Mr. Higerd had checked a suitcase which contained an expanding type folder that contained ten photographs of alleged child pornography at Pensacola Regional Airport. After he had checked his luggage at the ticket counter, he passed through the personal security checkpoints with his carry-ons, including his laptop, and walked to the gate where his flight was departing. Unbeknownst to him, TSA, in accordance with federal TSA policy and procedure, preselects a random number of checked bags they must search for firearms or explosives. (There are several other issues analyzed in this case that are too detailed to include in this brief article).

Mr. Higerd's bag was the next randomly selected bag and as a TSA officer was required to thumb through the contents of the accordion-type file folder found in Appellant's bag under TSA protocol. She testified she was merely running the swab through the papers in the folder when she came upon ten photos depicting child pornography. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005)."

Unlike the officers in Fofana and McCarty, the TSA officer's testimony here did not hint that she was intentionally looking for evidence of criminal behavior" the First District Court of Appeals stated. A TSA agent can NOT randomly go looking for evidence of criminal behavior; however, while looking for evidence of explosives or firearms in good faith, if they should see evidence of a crime they seize it and subsequently arrest the owner of the bad that contained the contraband. (In good faith means that they are not merely looking for evidence of crime; their search authority is limited to looking for explosives and firearms).

Federal Court Rules Emails Protected Under 4th Amendment

Thu, 16 Dec 2010 00:05:44 -0600

On December 14, 2010, in United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored emails without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider,” the court said.

Warshak is an interesting appellate opinion stemming from a multi-defendant trial in the Southern District Court of Ohio federal district court. The case involved multiple defendants who had varied interests in the company that sold the widely advertised product Enzyte, an herbal supplement first marketed by
Berkeley Premium Nutraceauticals alleging to increase the size of a man's erection. The company changed it's advertising approach in 2009 to represent the product as a as a "male enhancement" that assists in erectile dysfunction. The defendants were charged with 112 counts including conspiracy to commit mail fraud, wire fraud and money laundering. The jury found that the government's evidence presented proved that representations made by the company were based upon fictitious doctors and bogus studies. According to the opinion, the company profited over $500 million dollars.

The import of the case is that the federal appellate court found that we have, in almost all cases, a Fourth Amendment protection against seizures and searches of our emails because we have a reasonable expectation of privacy in emails even though they are transmitted to the intended recipient through internet service providers. (We generally do not have a reasonable expectation of privacy and 4th amendment protection to communications made when a third party is present). The court equated emails to regular U.S. mail in that both forms of communication are handled or stored by entities other than the individual to whom our communication is directed. Just like our communications through the U.S. Mail, the government does not have the authority to order the U.S. Postal service to open our mail without probable cause or without obtaining a search warrant. In Warshak the government ordered the Internet Service Provider to store all of Warshak's emails. Then, at some point, they obtained 27,000 emails from the ISP and found very incriminating information contained in some of his personal emails.

Florida Search And Search Law -- Automobile

Sat, 11 Dec 2010 08:24:13 -0600

In a very recent Florida appellate case, a line was drawn between when a citizen suspected of possession of controlled substance is merely cooperating with law enforcement or if he or she becomes a agent of law enforcement that could result in the suppression of evidence the "agent" of law enforcement obtains from another individual. (This case involves juveniles so initials are used rather than names in accordance with Florida law).

In State v. C.D.M., 35 Fla. Law Weekly D2581, Case No. 2D09-4236, November 24, 2010, an officer had stopped two juveniles in a vehicle for a traffic violation. The officer smelled marijuana and asked the driver, C.C. to step out of the car. The officer told the juvenile driver, C.C., that he could smell the marijuana and things might go better for him if he cooperated and gave the officer any marijuana that might be in the car. C.C. decided to cooperate and went back to the car and asked his juvenile companion, C.D. M. to give him the marijuana, which C.D.M. did. C.C. testified at the motion to suppress hearing that he felt he had no choice but to comply with the officer's request. (If CC was an agent of law enforcement C.D.M.'s consent to provide the marijuana to C.C. would have been found to be a coercive, involuntary consent).

The trial court suppressed the marijuana evidence against C.D.M. holding that C.C. had acted as an "agent" of the police when C.C. went back to the car and obtained the marijuana from C.D.M. and thus C.D.M.'s consent was involuntary.

The Florida appellate court said the trial court was wrong in it's holding. That merely because C.C. said he felt he had no choice but to oblige the officer, he was not acting as an "agent" of the officer because the officer had no idea that C.C. himself was not going to retrieve the marijuana the car nor did the officer think that C.D.M. was holding the marijuana. See Coolidge v. New Hampshire, 403 U.S. 443, 448, (1971)(even if a citizen feels obliged to assist law enforcement, it is not part of the policy underlying the 4th and 14th Amendment to discourage citizens from aiding law enforcement in apprehending criminals).

Both juveniles were ultimately charged with possessing marijuana. The appellate court found that merely because the officer asked CC to obtain the marijuana from the car CC was not acting as an agent of law enforcement and the marijuana charge alleged against C.D.M. was valid.

To read other search and seizure articles please see other articles in this blog or the published article section of the Law Offices of M. James Jenkins, P.A.

Florida Residential Search and Seizures

Sat, 04 Dec 2010 22:24:35 -0600

This article will briefly touch upon when a law enforcement officer, when placing someone under arrest, either inside their home or close to their home, may do what's called a "protective sweep," a term of art used in criminal law wherein an officer searches the interior of a home for other suspects or dangers. It is during protective sweeps when officers often find contraband or other evidence of an incriminating nature. However, there are only limited circumstances when the so called "protective sweep" can be implemented and, albeit often abused, the "sweep" can only be for very limited purposes.

A protective sweep, aimed at protecting the arresting officer, may be conducted only when the officer "possesses a reasonable belief based on specific articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325 (1990). The purpose of the sweep when an arrest occurs is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence. In Buie, the search/sweep occurred only after the suspect was outside his residence, handcuffed and unarmed. An officer must articulate or explain why he thought there was another person in the house.

If an individual is arrested, for instance, in the yard of his home, and no other evidence exists that there is another potential assailant inside the home, it is likely that if the officers enter the home to do a "protective sweep" and find incriminating evidence or contraband that such seizure is illegal and the evidence should be suppressed.

Being the Best Trial Lawyer You Can Be - Florida or Anywhere

Mon, 06 Sep 2010 13:20:33 -0600

On August 31, 2010, while on the airplane returning from the week long “interactive” training I generally attend every year in Dubois, Wyoming at the Trial Lawyers College, the thought that weighs heavy on my mind is how do I keep the gifts or lessons learned in the forefront of my mind when I return to my daily life and trial work. This experience each year has generally a good one, both personally and professionally. But it seems this time the experiences were extraordinary this year; for one thing, having a roommate for nine days was extraordinary. But kidding aside, the gifts or lessons taken away from attending my ninth “Trial Lawyers College” post graduate program were seemingly much more powerful this time.

What makes this experience so extraordinary is not so much applying or learning methods of how to be a better trial lawyer or communicator, but the realization that our lives, if they are to be full, are based on relationships we form with ourselves, other people and our world.

In order to have fully developed relationships we have to understand and know who we are. This not only means understanding our feelings about certain issues and thoughts we may have, it also means accepting ourselves for who we are, the good parts and the not so good parts. The exercises and methods employed by the College, whether you are involved in the re-enactment of a personal event of your life, your client’s life, a witnesses’ life or merely observing others doing these things, enables you understand that we all have common issues merely because we are human beings. Watching someone's reenactment of an important event makes us remember similar events in our lives and can bring back feelings about an event that happened 25 years ago that we may have thought of for many years. Or, we may experience how that event that occurred so long ago makes us feel now, in the present moment. Most of us certainly don't think we can "feel" an event again five, ten or twenty-five years later but we can using the many methods, including those developed by J. L. Moreno, M.D., the creator of psychodramatic methods.

Once we get to the place where we feel, rather than think about the past event, our truths reveal themselves. Some people don't want to go to such places; they have compartmentalized an event and don't want their initial interpretation of the event from long ago to get “out of the box” again. (If we even realize we have stuffed the event and true feelings in a box). A big problem is that our initial interpretation of an event may be wrong and, by “re-feeling” the event, we may re-frame the entire event and find the real truth.

I wish there was a way to keep the feelings, compassion, empathy, understanding and love we have for others after leaving this program permanently ingrained in our psyches. It seems that once returning to the world and culture that I currently live in, I allow the stressers, daily crises, and extraordinary problem solving requirements of being a trial lawyer to forget I can access these qualities of innate human nature that can make life, and practicing law, so much more fulfilling.

Doctor Shopping in Florida - a law now being enforced

Tue, 29 Jun 2010 03:00:19 -0600

In an effort to limit the number of people who go to multiple doctors to obtain prescriptions for the same type of pain medication, Florida law enforcement has begun enforcing a 2003 statute, Florida Statute § 893.13(7)(a)8, that makes it a felony for a person to go to more than one doctor to obtain identical medication before a refill is allowed for the first prescription. Section 893.13(7)(a)8., Florida Statutes (2008), also known as the “doctor shopping” statute, provides that it is unlawful for any person:
To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.

People's names, whether paying in cash or by insurance, credit card or otherwise, are entered into a data bank that "cross references" the person's name with the narcotics they purchase. If a person's name shows that he or she got Lortab's for instance from pharmacy A on June 4, 2010 using a prescription from Dr. Jones, and then again filled a prescription from Pharmacy B for Lortabs on June 15, 2010 using a prescription from Dr. Smith, law enforcement authorities are notified by the computer system that monitors these purchases and there exists a high probability that law enforcement will attempt to interview and subsequently arrest the person who appears to be doctor shopping. Law enforcement officers may ask the doctor if he or she were aware that the patient was also seeing Dr. Smith and receiving a prescription for Lortabs (or xanax, valium, oxycodone, percoset, hydrocodone (generic Lortabs), etc. prior to the date of the next refill allowed by your prescription. Of course the doctor is not aware of this and the police can then obtain a warrant for the "doctor shopper's' arrest on felony charges. Many narcotic type prescription drugs however require a face to face meeting with the doctor on a monthly basis in order for the doctor to refill the prescription. The doctor shoppers in these cases see multiple doctors and go to multiple pharmacies to have their scripts refilled. Florida is also one of the few states that allow these pain clinics to dispense medication themselves.

One of the highest profile cases in recent years dealing with the "doctor shopping" statute referenced above involves right-wing nationally syndicated Rush Limbaugh. If interested you can read the appellate opinion of his case by clinking on this link: Limbaugh v. State. Mr. Limbaugh was represented by the consummate professional Florida attorney Roy Black, Esq.

Florida Sexual Offenses

Sun, 27 Jun 2010 10:28:37 -0600

Similar fact evidence is offered in a lot of sex cases in Florida and, of course, is most times, horribly damning to our clients.

In Florida we have statutory, Fla. Stat. 90.404(2), and case law, Williams v. State, (Fla. 1959), that allows the state to introduce evidence of prior similar sexual wrongdoing (other crimes, wrongs or acts) in a new case involving sexual offenses. There need be no conviction. In fact, even if former charges are dismissed, the underlying facts may be admissible. Pomeranz v. State, 703 So. 2d 465, 469 (Fla. 1997).

The state must give the defense "notice" of the use of such crimes at least 10 days before trial. (Much like federal rule 404(b) evidence). If the evidence is admitted the Court, if requested, must instruct the jury on the limited purpose for which the evidence was received immediately prior to when the evidence is admitted at trial and provide a limiting instruction in it's final instructions to the jury.

In Florida, we also have "reverse similar fact evidence where a defendant can offer evidence that another person committed the crime. State v. Savino, 567 So. 2d 892 (Fla. 1990). No notice requirement is required of the defense; however, because of our liberal discovery rules and procedural right to take discovery depositions in felony cases in Florida, the documents and/or names or witnesses intended to prove the "reverse similar fact evidence" must be disclosed to the prosecution. Depending on the facts of the case and how you strategical plan your defense, the prosecution may not learn of such defense prior to trial. However, the same admissibility standards apply to the defense's introduction of this evidence as it does to the State so there must be a proffer to show similarity of the evidence and it's relevancy. Because "reverse similar fact evidence" has a lower potential for prejudice to the State than standard similar fact evidence has to the defendant, the trial court has somewhat less discretion toe exclude reverse similar fact evidence offered by the defense. Palazzolo v. State, 754 So. 2d 731, 739-40 (Fla. 2d DCA 2000).

If objected to prior to trial by way of motion in limine or motion to exclude, a hearing must be held and the judge must not only find the similar fact evidence is relevant, he or she must also find its probative value is substantially outweighed by its unduly prejudicial nature. When the prejudicial nature of the evidence is outweighed by the undue prejudice the evidence creates, it is inadmissible. McLean v. State, 934 So. 2d 1248 (Fla. 2006). If the court finds that the evidence is relevant only to prove propensity or bad character it's inadmissible. However, in Florida, the rule of admissibility of evidence of other crimes, wrongs or acts in a child molestation case have been "relaxed." So, prior sexual acts of the defendant are admissible even though their sole purpose is to prove propensity to commit sex crimes - the rule of admissibility in a sex case becomes is the similar fact evidence to the matter for which it is being introduced? The amendment to the preexisting statute excluding prior act evidence if it only goes to show "propensity" has withstood constitutional challenge in a sex case.

The standard of proof for admissibility in Florida for "similar fact evidence" is by "clear and convincing evidence." The similar fact evidence must be stated with the same specificity as that is required of the allegations in the indictment or information.

If the presentation of the similar fact evidence becomes the "feature" of the present trial, the evidence will also be inadmissible. Ashley v. State, 265 So. 2d 685,693(Fla. 1972). Sometimes the evidence in the present case is so weak that the similar fact evidence may become the "feature" of the case at trial, and, if so, it should be ruled inadmissible. Also, if the similar fact evidence confuses or misleads the jury, or is cumulative, it may be ruled inadmissible.

Similar fact evidence generally is an extremely difficult hurdle to overcome if it is not excluded. However, sometimes the similar fact evidence is so weak or incredulous that, if admitted, it creates the appearance that the State is willing to do anything to bolster a weak case that should not have been filed on in the first place. However, for the most part, every possible effort to keep the evidence from being admitted must be made.

Importance of an Effective Opening Statement in Florida State Court

Sun, 21 Feb 2010 20:38:07 -0600

In State Court in Florida the rules allow for waiving or preserving your opening statement in a criminal trial. Also, in Florida, a lawyer can only tell the jury in opening statement, contrary to what most television legal dramas present, what you expect the evidence will show--you cannot argue inferences from those facts. (Albeit, voice inflection and tone, pauses, etc. can, if done properly, blur the line between what the evidence may show and argument).

If you said something in opening that is not "proven up" in the trial, the prosecutor will surely hammer home your omission in his or her closing. However, the jury, if they trust you, should be reminded that you have no burden to prove your case and when the case began you had no idea that the government would not even meet it's burden of proof beyond a reasonable doubt so therefore you had no obligation to put on the small amount evidence that you didn't. (A trial lawyer must be careful with this last concept because if your case is substantially overstated in opening, you will lose credibility and trustworthiness, which are necessary to win your case).

Albeit opinions vary on this issue, and I don't like to say "never," I believe it would be the extremely rare case when a trial lawyer would want to waive an opening statement.

If you have had a successful voir dire (lawyer term for jury selection) wherein the people on the jury trust and respect you because in short, you have shown great respect and honor towards them, delivering a convincing, trustworthy detailed story in opening can devastate opposing counsel's case provided you don't lose that credibility and trust throughout the rest of the trial. You must show them throughout the rest of the case what you said in opening is actually true.

Hopefully most of your client's story can be told through cross examination of the State's witnesses themselves. If you waive opening, the jury won't even know what points, especially subtle points, you are making during cross examination of the State's witnesses that add to you and your client's credibility.

For more on effective trial practice see other articles in this blog and Pensacola and Florida lawyer Jim Jenkins website.

Doctors and the Oxycontin crisis in Pensacola, Florida and our Nation

Tue, 05 Jan 2010 12:47:48 -0600

Oxycontin abuse and distribution has become of epidemic proportions, not only in the Pensacola and Northwest Florida area, but Florida as a whole as well as in most places in the nation. Oxycontin is in the class of drugs called “opiates,” which are considered highly addictive. Often times, addiction experts state, that people who have permanent injuries are prescribed less strong pain killers and then graduate to stronger drugs such as oxycodone or oxycontin after they have become addicted to this class of opiates. Oxycontin was originally created in 1996 to assist people who were incurring substantial, chronic pain. Many cancer patients have been prescribed Oxycontin. Doses come in varying strengths to deal with what would otherwise be unbearable, sometimes end of life pain the patient otherwise would experience. It is a good drug if taken as prescribed for people who have severe chronic pain.

However, for the last ten years has been abused in several different ways. It’s been abused and distributed improperly not only by doctors, who sometimes over prescribe it, but also by people who become addicted to pain killers, often time even starting with something less strong, such as percocet, Lortab, or other opiate medication. Often times, opiate addiction, including oxycontin addiction, can lead to heroin addiction because if someone who is addicted to opiates cannot obtain an opiate drug, they can obtain a similar physical effect from heroin. (And also keep from becoming extremely ill). Addicted people can take copious amounts of oxycontin, or roxycontin, which is basically oxycontin but is immediate acting, in such amounts that would kill a person who has not built a tolerance to the drug, which inevitably happens. (Oxycontin is a time release drug; some abusers will often crush it and snort it, smoke it, or reduce it to liquid and inject it directly into their veins).

There are two very different circumstances under which opioid analgesic medications are used inappropriately even if prescribed by a doctor. First, there are some licensed physicians who have simply ended their legitimate practices and are creating bogus pain management clinics, at which prescriptions are sold with no pretense of quality care and not in compliance with the statutory "standard of care" which applies to physicians. These physicians are being prosecuted, in most cases by the federal government, however state court cases exist in smaller numbers. Dr. Graves of Pensacola and Pace, Florida was prosecuted in state court in Milton, Florida many years ago and was sentenced to 60 years in prison. These classes of cases always involved "distribution of controlled substances resulting in death." Someone has overdosed, died, and the government's theory is the doctor prescribed the pain killer not in accord with the "standard of care" necessary for this drug to be prescribed. These prosecutions have resulted in some doctors not prescribing the drug even though it is the drug that should be prescribed. Second, there are compassionate and caring physicians who are periodically duped into prescribing opiates for addicts or dealers, believing these people to be legitimate patients who need pain management, and who arguably don't breach the standard of care for prescribing these drugs. Law enforcement authorities indicated that the effective prosecution of the first group is difficult, because the offenders claim to be within the second group.

Fundamental Fairness at Trial - Juror Intimidation

Sun, 06 Dec 2009 14:44:12 -0600

Courtrooms in Pensacola, the State of Florida, as well as all state and federal courts throughout the nation, are open to the public. In other words, anyone can go the Courthouse in Pensacola, Tallahassee, Miami, Los Angeles or anywhere else in America and watch Court proceedings. The Sixth Amendment to the U.S. Constitution requires that courts be open to the public; certain limitations have been imposed that either require a courtroom be closed or give the discretion to close a courtroom to the judge in certain situations, for example, when a minor child testifies about sexual abuse or when classified government information is presented in federal court.

An interesting decision was rendered the First District Court of Appeals in Shootes v. State, ---So. 3rd ---, 2009 WL3353139 (Fla. 1st Dist. 2009) on October 20, 2009. This is the appellate court that hears appeals from Pensacola, Tallahassee and Jacksonville, and all places in between. The case involved charges of aggravated assault with a firearm on a police officer. Jacquan Shootes was convicted of two counts of aggravated assault on a police officer. The case stemmed from Shootes car being hemmed in by two undercover Jacksonville narcotics officer’s cars with deep tinted windows to which Shootes argued at trial he thought were robbers --- hence he opened fire upon them. Officers testified they announced who they were, were dressed in clothing marked “Police-Narcotics Unit” and had badges around there necks or on their bodies somewhere. If a person does not realize a person is a police officer who advances upon them an issue of self-defense is presented if the defendant claims he did not realize they were law enforcement officers before force was used. The most significant issue in this trial was whether Shootes could identify the individuals who hemmed in were law enforcement officers or not.

What happened during closing arguments is what makes this case interesting. Anywhere from 50 to 75 uniformed Jacksonville Sherriff’s Officers showed up in Court. Just like you or me, they have a right to be present; court is open to the public. However, this large congregation of uniformed officers sat as close to the jury as they possibly could. (For some unexplained reason the trial was moved to a larger courtroom for closing arguments). Some of the deputies were dressed like undercover narcotics officers wearing clothing marked “Police” or “Narcotics, Jacksonville Police Officer.” The defense attorney did not notice the huge mass of officers sitting behind him during his presentation until after his argument. The jury convicted Shootes as charged and the defense attorney moved for a new trial based upon Shootes Sixth Amendment right to a fair trial was denied. The trial court denied the motion stating that the large conglomeration of law enforcement did nothing to communicate with the jury. The presence of courtroom observers wearing uniforms, insignia, buttons, or other indicia of support for the accused, the prosecution, or the victim of the crime does not automatically constitute denial of the accused's right to a fair trial. Holbrook v. Flynn, 475 U.S. 560 (1986) (four uniformed officers seated immediately behind defendant); Carey v. Musladin, 549 U.S. 70 (2006) (fair trial not denied by wearing of buttons with photo of victim by some members of victim's family). However, there are situations where the atmosphere in the courtroom might infringe on the defendant's right to a fair trial. When this issue is raised, a case-by-case approach is required to allow courts to consider the “totality of the circumstances.” Holbrook v. Flynn, 475 U.S. 560, 569 (1986).

The appellate court found that, pursuant to Florida Rule of Criminal Procedure 3.600(b)(8) and the Sixth Amendment of the U.S. Constitution the trial court should have granted a new trial because he did not receive a fair and impartial trial. The appellate court found that in light of the huge number of officers sitting so close to the jury that an unacceptable risk of impermissible factors may have come into play in determining the jury’s verdict. There was a substantial basis to believe the officers were there to convey a message to the jury, specifically, that Shootes had to recognize the four officers who jumped him as being officers and that the large number of officers showing up for the closing argument wanted a conviction. The Court found fundamental error and granted the defendant a new trial. His fate is still uncertain in light of his upcoming pending trial.

Although I don’t recall the name of the specific case, we had a similar situation in Pensacola occur approximately 15 years ago, except the large number of officers (25 to 40) showed up at a sentencing hearing of a defendant convicted of a crime involving a law enforcement officer. The officers appeared to influence, or perhaps intimidate, the judge into imposing a severe sentence. However, the judge’s sentence, as I recall, was not in the least affected by the officer’s presence.

If fairness is what is desired by all parties involved in the criminal justice system, is the behavior of the Jacksonville Sheriff’s Department turning out at least 50 officers for the closing arguments in the Shootes’ case indicia of an organization that is fair minded? One has to ponder, if officers would display such behavior in the public fishbowl of a courtroom, what might happen on the street late at night, when it is only you and them?

Plea Deal Reneged -- Roman Polanski

Fri, 27 Nov 2009 13:40:34 -0600

News coverage of the Roman Polanski arrest as he attempted to enter Switzerland to attend the Zurich Film Festival to receive an award in September of 2009 has been extensive. The case involves Mr. Polanski, when he was 43 years old, having sexual intercourse with a 13 year old girl in 1977. The girl alleged it was not voluntary. Regardless of whether the acts between the two were voluntary, the act would have constituted statutory rape under California law. (As well as existing Florida law). For a Video of American new coverage when this story was breaking see: http://www.youtube.com/watch?v=iMlTEStfQG8
The girl alleged she had been given multiple glasses of champagne and given part of a qualude, a powerful, then popular recreational narcotic that was eventually outlawed in the late 70s in the United States. Prior to the sexual intercourse, Mr. Polanski had photographed the girl both clothed and unclothed. She apparently had volunteered to do this with her Mother's consent. The girl’s mother had been told by Mr. Polanski the photos were being shot for the French version of Vogue. Apparently, this sexual battery, was reported to authorities as many others are: the young lady told her sister who then immediately told her mom and the mother then made a report to law enforcement. Mr. Polanski was arrested the following day and subsequently indicted for six serious felony counts involving the 13 year old. In Florida, under the law as it exists today, should similar allegations be proven against someone they would probably go to prison for at least fifteen years. As stated, Mr. Polanski was originally indicted for six charges but all charges were dropped but for one, “unlawful sexual intercourse with a minor” in a "plea arrangement" he and his attorneys made with the prosecutors and judge.

As a young boy in August 1969 I remember the horrific murders of Mr. Polanski's young, beautiful pregnant wife Sharon Tate and her friends at Polanski's and Tate's Hollywood Hills home, as well as the vicious murders of couple, the La Bianca’s, a day later, both murders being committed by the followers of cult leader Charles Manson. To say Roman Polanski has had some challenging times in his life is an understatement. Apparently his parents were both murdered in the Nazi concentration camps during World War II and he hid out as a small child in order to not be exterminated himself.

I also remember Mr. Polanski leaving the country in 1978 after he had pled guilty to one count of “unlawful sexual intercourse” after his attorney and the prosecutor had met with the Judge in the case, after Mr. Polanski had pled to the charge, who said he was not going to honor the plea agreement and wanted the lawyers to go forward with the plea hearing and then, subsequent to the news media leaving the Courtroom, he would modify his sentence to time served if Mr. Polanski agreed to sign a document agreeing that he would be deported from the United States. The original deal that had been struck included giving Mr. Polanski 90 days of incarceration so he could be mentally evaluated at Chino State Prison. However, onlyt after 42 days the doctors gave him a "clean bill" of mental health and he was released. Prior to his release, the Judge had been highly criticized for being so lenient on Mr. Polanski by only imposing a 90 day sentence. This is why, according to the prosecutor and defense attorney, who are both still living, the Judge planned to reneg on his deal and instead of giving Mr. Polanski 42 credit for time served he wanted to impose an additional 48 days in prison and wanted Mr. Polanski to agree as part of the modified plea agreement to be deported. This would have been an illegal sentence in light of the fact the judge had no authority to have Mr. Polanksi agree to be deported. The victim of the sexual battery and her mother agreed to the original deal and wanted the case to be resolved. Also, according to media reports, Mr. Polanski at some point paid the girl and her mother $500,000.00 in a civil settlement relating to the case. (According to some sources this money was not paid by Mr. Polanski). However, it is irrelevant whether there is a a civil settlement because any crime is a crime againt the state, not the individual.

Now, that the 76 year old Polanski has been arrested, the girl who was molested, now a 43 year old mother with three girls of her own, does not want to drudge up the past by bringing Mr. Polaski back to the U.S. to impose a sentence.

I recently read the grand jury transcript of the testimony of the girl, who was then 13 or 14 years old, and, frankly, the facts, if true, are quite egregious. The sexual battery occurred in the home of Jack Nicholson when no one was home. However, Angelica Houston, Mr. Nicholson’s girlfriend at the time, returned home while the Mr. Polanski was engaged in sexual intercourse with the 13 year old in one of the bedrooms. She did not know that Mr. Polanski was engaged in intercourse with the young girl. To read a copy of the transcript click here: http://www.thesmokinggun.com/archive/years/2008/0610081polanski1.html

So the debate and question that seems to be on people’s minds is should he be extradited and prosecuted now, after more than 30 years have past and “having done the crime, should he do the time?” (A quote used by many people commenting on this case). He did plead guilty; he thought he had a solid plea agreement between the judge, the prosecutor and his defense counsel; the judge because of his own self interests reneged on the agreed upon plea deal after Mr. Polanski had pled guilty so Polanski he leaves the United States the day of his sentencing to never return to avoid a jail sentence. According to a documentary on this case, even the prosecutor of the case, said he understands why Polanski would have left the country.

Also, the judge, after Polanski had left the U.S., held a news conference about the case citing was he was intending to do: impose 48 more days and order Polanski to be deported. It is against judical canons to comment on a pending case outside of the courtroom; however, this judge did not seem to care to abide by this rule.

Since his departure from the U.S. he has won various awards relating to movies, including winning an Academy Award in 1993 for the movie “The Pianist.” His supporters, which include many people in the movie business, cite his difficult upbringing, his parents being murdered during the Holocaust, and the trauma of having his pregnant wife viciously murdered as a basis to not extradite him. His detractors say he shouldn’t be given special consideration because of his wealth and fame nor does the fact that more than 30 years have passed since the crime was committed mean he should be given a “free pass” in light of his having become a fugitive from justice. Mr. Polanski is now under house arrest having posted a $4.5 million dollar bond. He is allowed to stay inside his Swiss Villa where he will wear an ankle monitor until he is either returned to the United States or his extradion issue is resolved.