Bruce v. State, 44 Fla. L. Weekly D1284a (4th DCA 5/15/19) Victim’s testimony that her daughter told her that the stolen bracelet was worth close to $300 is insufficient to establish the felony value. The sheer volume of the items stolen cannot sustain an inference that the cumulative value is above $100. “[E]ven where stolen items would appear to have a minimum value based on the nature of the item, a lack of evidence as to that value is typically fatal.”
Johnson v. State, 1D16-5350 (Fla. 1st DCA Oct. 6, 2017) Reversing a conviction for grand theft auto, the defendant lacked the requisite criminal intent where he re-possessed a vehicle in broad daylight and contacted police to report the intended re-possession as a result of non-payment of a loan. “The evidence presented regarding Johnson’s intent at the time of taking supports only a conclusion that he re-possessed the car as collateral for the unpaid loan.” Further, dual convictions for grand theft auto and theft of property within the vehicle at the time of the taking violate double jeopardy principles.
Allen v. State, 261 So.3d 1255 (Fla. 2019) A Golden Rule closing argument asks the jurors to place themselves in the victim’s position, and asks the jurors to imagine the victim’s pain and terror or imagine how they would feel is the victim were a relative.
North v. State, 2D16-2030 (Fla. 2017) Where defendant was charged with dealing in stolen property on basis of his taking and selling of his employer’s scrap metal, it was error to exclude defendant’s testimony that he had been given permission in email messages to take the scrap metal for himself — Defendant’s prospective testimony was not inadmissible hearsay, as the statements went to defendant’s state of mind, and not to prove the truth of the matter asserted.
Davis v. State, 207 So.3d 177 (Fla. 2016) The absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make dying declarations admissible under exception to hearsay rule under Florida Statute 90.804(2)(b). In order for the dying declaration exception to the hearsay rule to apply, the deceased must have known and appreciated his condition as being that of an approach to certain and imminent death, although it is not necessary that the declarant make express utterances that he would never recover. In determining whether to admit hearsay as a dying declaration, the court should satisfy itself, on the totality of circumstances, that the deceased knew he was dying.
Gudmestad v. State, 209 So.3d 602 (Fla. 2nd DCA 2016) Under Florida Statute 90.806(1) governing attacking and supporting credibility of a hearsay declarant, a hearsay declarant is treated as a witness, and his or her credibility may be attacked in the same manner as any other witness’s credibility.
Kaseta v. State, 2D12-6431 (Fla. 2d DCA June 3, 2016) Reversing a conviction for manslaughter and reversing for a new trial, the trial court reversibly erred by permitting the victim’s sister to testify that her late father related to her a neighbor told him there was a disturbance at a mobile home where the defendant and victim lived on the evening before victim’s disappearance. “Given the paucity of the State’s evidence even that Mimmovich is dead, let alone that Kaseta killed her, we easily reject the State’s assertion that permitting Martin’s improper testimony was harmless error. To the contrary, Kaseta’s conviction may well have unfairly turned on it.”
Leonard v. State, 2D15-1949 (Fla. 2d DCA June 10, 2016) Following a bench trial, the defendant was convicted of leaving the scene of an accident with death contrary to section 316.027, Florida Statutes (2009), a first-degree felony, and tampering with evidence contrary to section 918.13, Florida Statutes (2009), a third- degree felony. During the bench trial, a detective explained that he contacted the tag agency and learned that Mr. Leonard had changed the registration and license plate of the vehicle from his sister to himself. Mr. Leonard’s counsel immediately objected on hearsay grounds, but the trial court overruled the objection. As to the conviction for tampering with evidence, the trial court erroneously admitted hearsay testimony over timely defense objection; as it is not clear from the record that the trial court did not rely on that evidence in reaching its determination of guilt, the conviction for tampering must be reversed and remanded for a new trial.
Lopiano v. State, 164 So.3d 82 (Fla. 4th DCA 2015) Police officer’s statements during interview that he did not believe defendant’s denials of officer’s accusation that defendant digitally penetrated alleged victim were not admissible in prosecution for lewd or lascivious molestation, where the probative value of the statements was sufficiently outweighed by the unfair prejudice to his defense engendered by admission of the officer’s commentary. A police officer’s testimony or comments suggesting a defendant’s guilt invades the province of the jury to decide guilt or innocence.
J.B. v. State, 166 So.3d 813 (Fla. 4th DCA 2014) Hearsay testimony of store security officer in delinquency adjudication proceedings, relating his co-worker’s statement that subject juvenile took bracelet from store, was not admissible to explain “state of mind” of officer who heard hearsay or to explain logical sequence of events.
Baldwin v. State, 44 Fla. L. Weekly D1306b (1st DCA 5/16/19) Hearsay evidence is admissible in violation of probation hearings, but hearsay evidence that is not corroborated by non-hearsay evidence is insufficient to establish a violation of probation.
Helms v. State, 44 Fla. L. Weekly D1288a (4th DCA 5/15/19) Officer’s testimony that the phone number was the Defendant’s, based on the Defendant’s girlfriend’s alleged statement (denied by the girlfriend) to the officer that it was, leading to the procurement of phone records was inadmissible hearsay. The records thereby linked to the defendant were consequently inadmissible.
HEARSAY – RIGHT TO CONFRONT
Recco v. State, 264 So.3d 273 (Fla. 5th DCA 2019) Limitation on defendant’s right to confront five year old alleged victim with her prior inconsistent statements at trial for lewd or lascivious molestation, exhibition, and conduct was not harmless error.
Holborough v. State, No. 4D11-3552 (Fla. 4th DCA November 28, 2012) At the trial of this crime against a person, the trial court erred in allowing hearsay evidence alone to establish the victim’s identity. Because there was not competent evidence of the victim’s identity, we reverse and remand for a new trial. Another issue in this case is whether the identity of the victim was an essential element of the crime charged that the State was required to prove beyond a reasonable doubt. We conclude that it was. It is well established in Florida law that for crimes against persons, the name of the person victimized is an essential element of the crime that the State must prove beyond a reasonable doubt in a criminal prosecution. The dual rationale for this rule is that it “inform[s] the defendant of the charge against him and . . . protect[s] him against another prosecution for the same offense.”
Jershun v. State, 169 So.3d 232 (Fla. 4th DCA 2015) When the state must establish the existence of a prior conviction to prove an essential element of the offense, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Instead, the state must present affirmative evidence that the defendant and the person named on the prior judgment are the same person.
Calloway v. State, 210 So.3d 1160 (Fla. 2017) A party can open the door to otherwise inadmissible evidence through testimony from a witness. In the interests of fairness and the truth seeking function of a trial, the opposing party may in turn present inadmissible evidence that qualifies, explains or limits previously admitted evidence. Self-serving hearsay statements are generally inadmissible, but if a partial statement, writing, or recording is admitted, the rule of completeness permits the opposing party to introduce other portions of that same statement, writing, or recording in the interest of fairness.
Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016) Where there has been a prior felony conviction, only the fact of conviction can be brought out, unless the witness denies the conviction. If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions.
Davis v. State, 207 So.3d 177 (Fla. 2016) To be admissible, a prior inconsistent statement must either directly contradict or materially differ from the expected testimony at trial. Moreover, the inconsistency must involve a material, significant fact rather than mere details.
State v. Gonzalez, 212 So.3d 1094 (Fla. 5th DCA 2017) “Material witness” is one whose testimony is both legally relevant, (meaning it tends to prove or disprove a material fact) and substantial (meaning that it supports the elements of the charged crime) as that term is used in criminal procedure Rule 3.140 providing that information charging the commission of a felony shall be signed by State Attorney under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from material witness for the offense.
Carlson v. State, 166 So.3d 957 (Fla. 4th DCA 2015) Trial court erred when it allowed state, mid-trial, to amend the information to add officer as an alternative victim under the resisting without violence charge because the mid-trial amendment was not a mere clarification of some detail in an existing charge, but rather, was tantamount to adding a new charge against defendant. This was not a case of simply correcting the name of the victim where only a single officer was involved and no one, including the defendant, reasonably could have been misled as to the identity of the victim.
Grant v. State, 138 So.3d 1079 (Fla. 4th DCA 2014) To enhance a defendant’s sentence under statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence, the grounds for enhancement must be clearly charged in the information. Jury’s finding that defendant carried a firearm in the course of committing an attempted robbery, so as to support conviction for attempted armed robbery was insufficient to support ten year mandatory minimum sentence under statute authorizing such a sentence for a defendant who actually possessed a firearm during the commission of an attempted robbery. Jury made no finding that firearm was within immediate physical reach with ready access or that defendant had intent to use the firearm during the commission of the offense as required for constructive possession under the sentence enhancement statute. Applicability of statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence is predicated on the defendant being found to have been in actual possession of the firearm.
Hall v. State, 2D14-2321 (Fla. 2d DCA Jan. 5, 2016) Where it was undisputed at trial that the victim’s statements led the defendant reasonably to conclude that the domestic violence injunction was no longer in effect, the trial court erred in failing to grant the defendant’s motion for a judgment of acquittal on the charge of violation of the domestic violence injunction.
Heare v. State, 205 So.3d 823 (Fla. 2nd DCA 2016) Appellant court reviews trial court’s decision to withhold a requested jury instruction for an abuse of discretion, and the question on review is whether there was any evidence, however slight, to support the requested instruction.
Pacchiana v. State. 4D15-3340 (Fla. 4th DCA Feb. 14, 2018) “Here, the juror was not questioned about her religious views until after the state made its preemptory strike, thus calling its genuineness into question. Moreover, even after questioning the prospective juror about her religion, there was a complete lack of evidence that her religion would influence her decision-making as a juror. In fact, the juror unequivocally stated she would follow the evidentiary standard beyond a reasonable doubt and none of her responses during voir dire gave any reason to doubt this statement. Further, after the trial court determined that being a Jehovah’s Witness was a race-neutral reason to strike the juror from the panel and that she wavered on sentencing, the court opined that ‘a Jehovah Witness, that as a religion, it would almost be malpractice for a prosecutor to let someone on the jury like that.’ These statements support the argument that it was not the juror’s answers, but rather her mere religious affiliation, that caused her to be struck from the panel. Even if the state’s strike were ‘genuinely’ based on the juror’s religion, members of a religion that is a cognizable class are also protected under the United States and Florida Constitutions from being systematically struck from juries solely based on their faith. Appellant has a right to a fair and impartial jury panel where the state does not exclude members of a religion in the absence of competent substantial evidence that the potential juror cannot be fair and impartial due to her views related to her membership in that religion. ”
Rentas v. State, 4D160533 (Fla. 4th DCA Jan. 10, 2018) A trial judge reversibly errs by denying strikes for cause of two prospective jurors based on statements raising doubts as to their impartiality where both questioned the validity of false confession allegations. A trial court reversibly errs by limiting playback of a victim’s recorded testimony to the first twenty minutes without playing cross-examination as well because the first portion of the testimony solely supported the State’s case.
Kelsey v. State, 206 So.3d 5 (Fla. 2016) Juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.
Landrum v. State, SC15-1071 (Fla. June 9, 2016) “[T]he Supreme Court’s decision in Miller applies to juvenile offenders whose sentences of life imprisonment without parole were imposed pursuant to a discretionary sentencing scheme when the sentencing court, in exercising that discretion, was not required to, and did not take ‘into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ Miller, 132 S. Ct. at 2469.”
Landy v. State, 205 So.3d 801 (Fla. 2nd DCA 2016) Defendant who had been sentenced to life imprisonment with parole eligibility after 25 years for murder committed when he was 17 years old was entitled to resentencing after Florida Supreme Court concluded that state’s existing parole scheme did not provide for requisite individual consideration of a juvenile’s status.
Reza v. State, 163 So.3d 572 (Fla. 3rd DCA 2015) Although lack of notification of a child’s parents is a factor court may consider in determining voluntariness of a child’s confession, it is not a statutory prerequisite to interrogation.
M.B. v. State, 5D14-2979 (Fla. 5th DCA March 13, 2015) A trial court errs by ordering a 14-year-old juvenile offender to register as a sex offender after the trial court expressly found that the juvenile touched his victim’s genitals over their clothing. Section 800.04(5)(c)1, Florida Statutes, only permits a trial court to order a juvenile offender to register as a sex offender “where the court finds molestation involving unclothed genitals…”
JUVENILE – PDR
E.G. v. State, 263 So.3d 81 (Fla. 4th DCA 2019)Failure to consider a predisposition report (PDR) in a juvenile delinquency proceeding before disposition is reversible error.
Brown v. State, 263 So.3d 48 (Fla. 4th DCA 2018) State direct filing charges of vehicular homicide, fleeing and eluding, and driving while license canceled, suspended, or revoked causing serious bodily injury or death against juvenile defendant in adult court was improper under Florida Statute 985.557(1)(a) allowing discretionary direct filing for certain enumerated crimes, where the list did not include lesser included offenses for the enumerated list, and none of the crimes charged were part of the enumerated list.