Blog Topic

Entering house to throw a party not enough to convict for burglary
December 18, 2008

P.D.T., a minor, entered a home without the permission of the owner with a group of friends. A party ensued where the group drank beer and smoked marijuana. Underage drinking, smoking marijuana and illegal entry into another dwelling are all crimes. P.D.T. filed a motion for judgment of dismissal based on the fact that there was no evidence before trial that the minor entered the dwelling with the intent to commit an offense inside.

P.D.T. was charged with delinquency for burglary of a dwelling. To prove the crime of burglary of a dwelling, the State must prove that the defendant either: entered the dwelling without permission and with the intent to commit an offense therein or following an invited entry, remained in the dwelling surreptitiously, or after permission to remain had been withdrawn, with the intent to commit an offense therein.

The prosecution failed to supply any evidence that P.D.T. had the requisite intent needed to commit a burglary of a dwelling. All the State could prove is that P.D.T. entered the house with the intent to party. There was no evidence that he was aware that there was marijuana or alcohol in the dwelling. As such, the State failed to prove an essential element of the crime.

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DISQUALIFICATION OF THE ENTIRE STATE ATTORNEY'S OFFICE GENERALLY NOT AN OPTION
December 18, 2008

Michael Hayes was accused of forgery as well as grand theft and extortion. One of the alleged victims was a local attorney. By the time the trial, the attorney had obtained a position on the bench as a county court judge.

The first prosecutor offered Mr. Hayes a plea deal of a probationary sentence with restitution. That prosecutor subsequently left the prosecutors office. The second prosecutor felt that probation was too lenient of a sentence and withdrew the plea deal. Mr. Hayes filed various motions for change of venue based on the notoriety of the victim and the fact that he was one of the most prominent attorney's in the county. Additionally, Mr. Hayes filed a motion to disqualify the entire State Attorney's Office claiming that the office had an inherent conflict of interest in having to prosecute a case involving an alleged victim who is a sitting county court judge before whom the office must practice every day. He contended that he would be unable to receive a fair trial. Finally, Mr. Hayes filed a motion to enforce the original plea agreement.

In instances such as this, "the disqualification of Government counsel is a drastic measure and a court should hesitate to impose it except where necessary." The Florida Supreme Court has held that disqualification of a prosecutor is proper "only if specific prejudice can be demonstrated." Actual prejudice is something more than the mere appearance of impropriety and disqualification of a prosecutor is only proper when it is necessary "to prevent the accused from suffering prejudice that he otherwise would not bear." The court found that there was no specific evidence that there was any prejudice on the part of the prosecutor's office. The court also found that in any case, the victim has the right to testify at the sentencing portion of the trial. Therefore, there was no impropriety when the judge testified at the sentencing hearing. Finally, the court found that Mr. Hayes had no right to a probationary sentence. That sentence was below the guidelines set for such offenses. Additionally, the State enjoys the right to withdraw a plea offer at any time up until the plea agreement is accepted by the court. Thus, there could be no actual prejudice based on the State's withdrawal of a plea offer it had every right to withdraw.

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INEVITABLE DISCOVERY RULE AND MIRANDA
December 18, 2008

On February 5, 2007, Lisa Nowak, former NASA astronaut gained international fame when she was arrested after driving from Texas to Florida in order to confront her boyfriend's lover. She was subsequently charged with attempted kidnapping.

At trial, the prosecution attempted to use statements obtained during a custodial interview when the Orlando Police Department first confronted her at the airport. If the state attempts to use statements obtained from the defendant, they must show that she knowingly and intelligently waived her Miranda rights before police questioned her. Additionally, they must demonstrate that the defendant's statements to the police were made voluntarily. The prosecution failed to provide any evidence that Ms. Nowak waived her Miranda rights or voluntarily agreed to speak to police.

Because the statements made by Ms. Nowak were taking in violation of her Miranda rights that illegally obtained evidence should have been rightfully excluded from the prosecutions direct case. Generally, when police locate physical evidence using illegally obtained evidence, that evidence is barred at trial under the "fruit of the poisonous tree doctrine." An exception exits where the State is ale to demonstrate that it would have discovered the evidence anyway, by legal means. Under this exception, evidence obtained as the result of unconstitutional police procedures may still be admissible if it is shown that the evidence would have been discovered by legal means.

As a result of the illegally obtained statements, the police located additional evidence in Ms. Nowak's car. In order for the State to utilize this evidence, they would have to demonstrate that they would have found the vehicle without using the illegal information and that the police would have probable cause to search the car without relying on Ms. Nowak's statements. The court found that the police would have located the car even if she had not led them to it. Police testified that they would have called her employer to determine what type of car she drove and then contact the hotel where she was registered to stay in Orlando. This should lead the police to the type of car as well as its current location.

Probable cause is a practical, common sense question. It is the probability of criminal activity. The determination of probable cause involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Applying this standard, as long as law enforcement had practical, common sense basis to conclude that Ms. Nowak's car likely contained additional evidence of her alleged criminal conduct; they had probable cause to search the car. The court found that there was significant evidence prior planning from the evidence seized from Ms. Nowak. That evidence pointed to the contention that the plan likely extended beyond the airport parking lot. Given this information, it was common sense that additional evidence would be found in Ms. Nowak's vehicle if police searched it.

This case shows that even if evidence is rightfully excluded because of a Miranda violation, subsequent evidence may still be admitted as long at it would have been inevitably discovered.  The full ruling of the court may be found here. 

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Evidence of other drug use not alleged in DUI charge excluded because of prejudicial effect
December 12, 2008

Florida DUI laws allow for a person to be found gulit if they are under the influence of either alcohol or a controlled substance to the extent that their normal faculities are impaired. Jurys in Jacksonville, Green Cove, Yulee and St. Augustine are generally known to convict more often in cases involving drugs than alcohol. Therefore, it is hard to defend cases where the DUI allegations involve drugs. However, a court recently gave Defendant's some protection in these types of cases.

In Justin Estrich v. State of Florida, (33 Fla. L. Weekly D2726b), Estrich was charged with DUI manslaughter after being involved in a serious traffic accident. The charge was based entirely on the defendant's ingestion of prescription Xanax. While searching the car, the police recovered a bottle that contained a small amount of marijuana. The results of a blood test showed that Estrich had the marijuana metabolite in his blood but experts testified that it would not have played a role in the accident. Before trial, Estrich moved to sever the marijuana evidence from the driving offense and the exclusion of testimony about the marijuana metabolite in his blood contending that such evidence was unfairly prejudicial. Estrich argued that the jury could see evidence of marijuana in the car and the metabolite in his blood as additional support for his impairment. The trial court denied the motion.

On appeal, the court determined that evidence of a metabolite in the blood could be prejudicial. The court reasoned that relevant evidence is admissible except as provided by law. § 90.402, Fla Stat. (2007). Evidence is relevant if it tends to prove or disprove a material fact. §90.401, Fla Stat. (2007). The presence of the marijuana metabolite, if relevant, was only barely so. The material fact at issue was the defendant's impairment at the time of the crash. All the expert testimony at trial stated that the marijuana probably did not affect him at the time of the collision. On the scale of relevancy, such tenuous probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. The evidence of marijuana metabolites in the defendant's blood raised the spectre of illegal drug use, a fertile source of prejudice in the eyes of the jury.

The court also found that the trial court erred in not severing the possession of marijuana charge. Under the Florida Rules for Criminal Procedure 3.152 (a)(2)(A), severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense. Preventing improper joinder is important because evidence relating to each of the crimes may have an effect of bolstering the proof of the other. The testimony in one case standing alone may be sufficient to convince a jury of the defendant's guilt, evidence that the defendant may have also committed another crime can have the effect of tipping the scales.

Evidence presented at trial indicated that the marijuana did not contribute to Estrich's impairment. Allowing the jury to hear that the defendant possessed marijuana had a prejudicial effect on the trial of the manslaughter charge. Because there was a significant risk that the evidence of the defendant's possession of an illegal drug would bolster the state's contention that yet another drug impaired the defendant's ability to drive, the trial court abused its discretion in denying severance.

This ruling is important because it shows that the state will attempt to introduce any evidence that had a tendency to prove a material fact of the case. This ruling shows that only relevant evidence should be admitted so that the defendant is not unfairly prejudiced during trial.

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