The “Cite” of the Crime Podcast
Florida Criminal Case Law Update (October 17, 2022 – October 21, 2022)
Listen to this week’s The “Cite” of the Crime Podcast episode here.
OVERVIEW – 7
- 0 – Florida Supreme Court Cases
- 4 – First DCA Cases
- 1 – Second DCA Cases
- 1 – Third DCA Cases
- 0 – Fourth DCA Cases
- 1 – Fifth DCA Cases
Case #1 – Baker v. State, No. 1D22-1182 (Fla. 1st DCA)(October 18, 2022)
- Baker is a second degree murder post-conviction relief case.
- Mr. Baker was convicted of the second degree murder of his girlfriend’s two year old child.
- Mr. Baker was sentenced to life and his case was affirmed on appeal.
- On this appeal, Mr. Baker argued that his appellate counsel was ineffective for failing to file a 3.800(b)(2) motion to correct a sentencing error because he believed that his life sentence exceeded the 30 maximum sentence for a first degree felony.
- However, the 1st DCA found this argument to be meritless because he was found guilty of second degree murder, where the statutory maximum is life in prison.
- Mr. Baker also argued that appellate counsel was ineffective for failing to argue fundamental error when the trial court instructed the jury that the State did not have to prove that Mr. Baker intended to cause the child’s death.
- The 1st DCA found this argument to be meritless because the State does not have to prove that the defendant acted with the specific intent to cause the victim’s death, but merely that he committed a dangerous act without regard for the victim’s wellbeing that resulted in the victim’s death.
- Mr. Baker also argued that the trial court committed fundamental error by instructing the jury on the lesser included offense of aggravated manslaughter of a child because the State did not allege the specific age of the victim in the information.
- However, the 1st DCA rejected this argument because the State did allege that the victim was under the age of 18 in the Information, and that was all that was required.
- Case Affirmed.
Case #2 – Ford v. State, No. 1D20-3350 (Fla. 1st DCA)(October 19, 2022)
- Ford is a duress and admission of evidence of gang affiliation case out of Duval County.
- Mr. Ford and two co-defendants drove to a trap house to sell rims to the victim in exchange for $250 and 7 grams of cocaine.
- Mr. Ford confronted the victim about money he owed Mr. Ford.
- Mr. Ford gave a signal and Mr. Ford and a co-defendant drew their guns and demanded money from two victims.
- Mr. Ford told his co-defendant to shoot one victim, which he didn.
- Mr. Ford then shot the same victim several times while he was still alive, but who subsequently died of his wounds.
- Another victim ran and Mr. Ford told the co-defendant to shoot him and the co-defendant shot the other victim; who survived.
- During the trial, the co-defendant testified and a jail informant also testified.
- The jail informant wore a wire when talking to Mr. Ford, who stated on the recording that he and the co-defendant had gone to the trap house to rob them for drugs and Mr. Ford had to kill the victims because the co-defendant used Mr. Ford’s real name.
- Mr. Ford testified that it was the co-defendant who did all of the shooting with no warning to Mr. Ford and that the co-defendant was waving the gun around and demanded that Mr. Ford go get the drugs that the victim had.
- Mr. Ford requested a jury instruction on the defense of duress, but the trial court denied the request.
- The State argued felony murder and Mr. Ford apparently thought that if he was not guilty of the underlying felony robbery charge because of duress, he would not be guilty of the first degree murder charge.
- There are six elements of a duress defense:
- 1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause;
- 2) the danger or emergency threatened significant harm to himself or a third person;
- 3) the threatened harm must have been real, imminent, and impending;
- 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime;
- 5) the crime must have been committed out of duress to avoid the danger or emergency; and
- 6) the harm the defendant avoided outweighs the harm caused by committing the crime.”
- On appeal, the 1st DCA found that the trial court did not err by refusing to give the duress instruction because there was no evidence supporting it.
- The District Court noted that the evidence showed that Mr. Ford planned to commit the robbery prior to arriving, made admissions to his involvement on the wire, and based on the co-defendant’s testimony and his own statements, there was no danger or emergency impelling Mr. Ford to commit the robbery.
- The Court next addressed Mr. Ford’s contention that the trial court erred in admitting testimony regarding his affiliation with the Pakistan Yulee Clique (PYC).
- However, Mr. Ford failed to lodge a specific objection at the trial court level so the error was not preserved.
- Trial counsel did object, but failed to state a specific legal basis, namely that the probative value was outweighed by the risk of unfair prejudice.
- But the Court did go on to state that even if the objection was properly preserved, it would still not have been reversible error because Mr. Ford’s attorney opened the door by asking State witnesses about their affiliation with the PYC gang, and the State only brought out Mr. Ford’s affiliation in response.
- Also, in light of the overwhelming evidence, the testimony of Mr. Ford’s gang membership could not have been prejudicial.
- Mr. Ford lastly argues that his trial counsel was ineffective for failing to object to the admission of the portion of the wire recordings where Mr. Ford talked about his involvement in other unrelated offenses.
- An ineffective assistance of counsel claim may be raised on direct appeal only in the context of a fundamental error argument.
- In a direct appeal, the District Court will review the record to determine whether the trial court erred, not counsel.
- So, in this context, the District Court must determine whether counsel’s alleged failure to object or otherwise act was so egregious that the trial court should have intervened even without a prompting of an objection.
- Here, the 1st DCA held that there was no fundamental error in the trial court’s failure to step in on its own to exclude the evidence of other wrongs.
- Case Affirmed.
Case #3 – Scott v. State, No. 1D21-2842 (Fla. 1st DCA)(October 19, 2022)
- Scott is a lack of remorse at sentencing case out of Escambia County.
- Mr. Scott was convicted of child abuse and unlawful use of a two way communication device to facilitate a felony.
- The 1st DCA laid out in great detail the facts of the child abuse, which the trial court described as “torture.”
- On appeal, the sole issue was whether the trial court erred by considering lack of remorse during sentencing.
- Because Mr. Scott did not object at the trial court level, the 1st DCA reviewed the issue for fundamental error only.
- The District Court noted that the trial court twice during the sentencing stated that Mr. Scott showed a failure to take responsibility for what the objective evidence established he had done.
- The Florida Supreme Court held in Davis v. State that the trial court is entitled to consider a defendant’s failure to accept responsibility or express remorse once the defendant voluntarily allocutes at sentencing.
- Case Affirmed.
Case #4 – Youngblood v. State, No. 1D21-1430 (Fla. 1st DCA)(October 19, 2022)
- Youngblood is a William’s Rule case out of Bradford County.
- Mr. Youngblood was convicted of sexual battery of a child under 12 by a person 18 years of age or older and sentenced to life in prison. The child in this case was 6 years old.
- At a pretrial hearing on the admissibility of Williams Rule evidence, witnesses testified that when they were between the ages of 6 and 8 years old, Mr. Youngblood sexually abused them much like the charged sexual battery offense.
- The McLean factors including the location where the act occurred, the age and gender of the victims, and the manner in which the acts were committed were all similar.
- Also, the Williams rule evidence did not become a central feature at the trial because the prior bad act testimony was short, the state only briefly mentioned it in opening and closing statements, and the jury was repeatedly instructed as to the proper use of the collateral crimes evidence.
- Case Affirmed.
Case #5 -Szewczyk v. State, No. 2D21-10 (Fla. 2nd DCA)(October 21, 2022)
- Szewczyk is a 3.850 ineffective assistance of counsel case out of Charlotte County.
- Ms. Szeczyk was on probation when a probation officer and 9 police officers searched her house.
- The officers didn’t have a warrant. There was no condition in her probation order authorizing warrantless searches of her residence. And the State conceded that there was no reasonable suspicion that Ms. Szewczyk had violated the conditions of her probation.
- Her trial counsel didn’t file a motion to suppress the evidence, so a trafficking amount of controlled substances was admitted at trial.
- Ms. Szewczyk was convicted and her conviction was affirmed on appeal, so she filed a 3.850 motion claiming her trial counsel was ineffective for not filing a motion to suppress.
- The trial court found that the trial counsel was deficient in his performance which is the first prong of the Strickland standard, but found that Ms. Szewczyk was not prejudiced by that deficient performance, which is the second prong.
- So, the trial court denied the motion and Ms. Szewczyk appealed to the 2nd DCA.
- The United States Supreme Court held in United States v. Knights that a warrantless search of a probationer’s home, supported by reasonable suspicion and authorized by a condition of probation, is reasonable within the meaning of the Fourth Amendment.
- The Florida Supreme Court held in Grubbs v. State that a warrantless search of a probationer’s residence by law enforcement officers, rather than a probation supervisor is not permissible under the search and seizure provisions of the Florida or United States Constitutions in the absence of one of the traditional exceptions to the warrant requirement.
- Here, the 2nd DCA noted in a footnote that none of the cases address a warrantless search by law enforcement officers without reasonable suspicion and where the probation order does not include a provision authorizing warrantless searches, as was the case here.
- But, the 2nd DCA didn’t have to address it either, because it agreed with the trial court that Ms. Szewczyk failed to meet the second Strickland prong of prejudice, therefore it didn’t have to address the first prong whether the trial counsel’s performance was deficient.
- The 2nd DCA found that because three co-defendants testified against Ms. Szewczyk and because Ms. Szewczyk, herself, testified that she received oxycodone in exchange for finding a pharmacy that would fill fraudulent prescriptions, this testimony alone supported the conviction without consideration of the evidence obtained in the warrantless search.
- Case Affirmed.
Case #6 – Ruiz v. State, No. 3D22-257 (Fla. 3rd DCA)(October 19, 2022)
- Ruiz is a sexual predator designation case out of Miami-Dade County.
- Mr. Ruiz was charged with lewd and lascivious molestation of a child less than 12 years of age by a defendant 18 years of age or older, which is a first degree felony.
- Mr. Ruiz pled guilty in 2002, received a withhold of adjudication and was placed on probation to receive sex offender treatment.
- The plea agreement made no mention of a sex predator designation.
- Twenty years later, in 2022, the State filed a motion to declare Mr. Ruiz a Sexual Predator pursuant to Florida Statute §775.21.
- The State contended that Mr. Ruiz qualified as a sexual predator and an order is statutorily mandated, but an order was never entered designating him as such.
- The trial court conducted a hearing and subsequently entered an order designating Mr. Ruiz a sexual predator.
- The Florida Supreme Court recently held in State v. McKenzie that a trial court has jurisdiction to designate a defendant as a sexual predator under §775.21 even though the defendant was not designated as a sexual predator at the time of sentencing and has since completed his sentence.
- Mr. Ruiz argued that McKenzie did not apply because res judicata barred the trial court from designating him a sexual predator.
- However, the 3rd DCA disagreed.
- To successfully invoke a res judicata defense, a party must satisfy two prerequisites
- First, a judgment on the merits must have been rendered in a former suit.
- Second, four identities must exist between the former suit and the suit in which res judicata is to be applied:
- 1) identity in the thing sued for;
- 2) identity of the cause of action;
- 3) identity of the persons and parties to the actions, and
- 4) identity of the quality or capacity of the persons for or against whom the claim is made.
- The 3rd DCA found that res judicata was inapplicable to Mr. Ruiz’s case because the State’s motion was a continuation of the original litigation and was not new litigation in a new case.
- As the State sought the entry of an order declaring Mr. Ruiz a sexual predator in the original criminal case and not in a subsequent action, the defense of res judicata does not apply.
- Case Affirmed.
Case #7 – Floyd v. State, No. 5D21-2645 (Fla. 5th DCA)(October 21, 2022)
- Floyd is another 3.850 ineffective assistance of counsel claim case out of Volusia County.
- Mr. Floyd was convicted at trial of sexual battery and lewd and lascivious molestation on children under 12 years of age.
- At trial, the State admitted a recorded interrogation of Mr. Floyd where he didn’t make any admissions and the detectives made several comments vouching for the credibility of the child victims and implicitly suggesting the detectives’ belief that Mr. Floyd was guilty.
- Mr. Floyd filed a 3.850 motion for post-conviction relief based on ineffective assistance of counsel claiming that his trial counsel was ineffective for failing to object to the admission of the detective’s statements.
- The trial court summarily denied the motion finding that the trial counsel made a strategic decision to keep some portions of Mr. Floyd’s interrogation at the cost of not redacting other portions. Mr. Floyd then appealed to the 5th DCA.
- Generally, an evidentiary hearing is required before a trial court can conclude that a certain action or inaction by trial counsel was the result of a strategic decision.
- The 5th DCA held that it could not determine from the record that the trial counsel’s decision not to object to the detective’s statements were strategic.
- The 5th also noted that although the interrogating detectives statements can be understood by a jury to be techniques used to secure confessions, a witness’s opinion as to the credibility, guilt, or innocence of the accused is generally inadmissible, and it is especially troublesome when a jury is repeatedly exposed to an interrogating officer’s opinion regarding the guilt or innocence of the accused.
- And here, the trial court did not address the prejudice prong of Strickland.
- So, the Court reversed and remanded for the trial court to conduct an evidentiary hearing.
- Case Reversed.