Palm Beach County Criminal & DUI Lawyer : Criminal & DUI Defense Attorney in West Palm Beach & Palm Beach | Criminal Attorney: DUI, Assault & Battery, Felonies

In the case of Toccara McClover versus the State of Florida, Ms. McClover was convicted of retail theft at a Wal-Mart store.  The facts of her case are that:

 "A security guard at a Wal–Mart store in Port St. Lucie, Florida testified that on surveillance cameras he watched two females come into the store in the early morning hours and select expensive electronic items which they placed in their shopping cart. They then headed to the garden center. No cash register was open in the center at that time of night. One woman waited near an emergency exit in the garden center with the cart of merchandise while McClover left the store through the front entrance. McClover was not seen taking anything from the store. Upon leaving the store McClover was seen making a phone call. At the same time, the other woman, who was still in the store next to the cart, was seen talking on her phone. Right away she walked away from the merchandise and left the store without taking anything, leaving the items near the back exit of the store.

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In the case of Aaron Little versus the State of Florida, Mr. Little was charged with committing the crime of second-degree murder with a firearm.  Little filed a motion to dismiss his case in which he argued that he shot the victim in self-defense and was therefore entitled to claim immunity from prosecution because of Florida's "Stand Your Ground" law which authorizes the use of deadly force when a person "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself."

The trial judge who heard Little's motion to dismiss denied his motion because in the judge's opinion Little removed himself from the imminent threat of death or great bodily harm by going inside a house. However, Little then chose to arm himself with a gun and re-engaged the victim.  It was that action, according to the trial judge, that prevented Little from claiming immunity under the Stand Your Ground law.

However, the court of appeals which reviewed Little's case disagreed with the lower-court judge. The court of appeals said that there was no evidence that Little made any threatening moves towards the victim or that he said any threatening words to him.  Instead, the victim raised his guns and pointed them at Little, and Little, in turn, responded to that threat by shooting and killing the victim.  Therefore, Little was entitled to claim immunity under the Stand Your Ground law.

The prosecutor also argued that Little's motion to dismiss should be denied because Little was a felon who was in illegal possession of a gun when he killed the victim, and anyone who is engaged in unlawful activity cannot claim immunity under the Stand Your Ground law.

The court of appeals rejected that argument as well.  The court said that Little's status as a felon in possession of a firearm did not preclude his claim of immunity where the evidence showed that Little's use of force was justified to prevent his imminent death or great bodily harm.

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In the case of Florida versus Jardines, the police took a drug-sniffing dog to Jardines' front porch where the dog gave a positive alert for illegal drugs. Based on that alert, the officers got a warrant to search Jardines' home.  When they went inside Jardines' home, the police found marijuana plants.  Jardines was charged with trafficking in marijuana.

Jardines appealed to the U.S. Supreme Court which ruled that it was illegal for the police to have brought a drug-sniffing dog onto Jardines' front porch in the first place.   Specifically, the Court held that:

1.  The investigation of Jardines' home was a “search” within the meaning of the Fourth Amendment to the United States Constitution.

2.  When the police obtain information by physically intruding on persons, houses, papers, or effects, a "search" within the meaning of the Fourth Amendment has occurred.

3.  At the core of the Fourth Amendment stands the right of a person to retreat into her own home where she can be free from unreasonable governmental intrusion.

4.  The area immediately surrounding and associated with the home—commonly called "the curtilage"—is part of the home itself for Fourth Amendment purposes.

5.  The officers entered Jardines' curtilage when they went onto his porch with a drug-sniffing dog. The front porch is the classic example of an area “to which the activity of home life extends.”

6.  The police were not explicitly or implicitly invited onto Jardines' porch.

7.  The police are not required to shut their eyes when passing by a home on a public street, but no one is allowed to go onto his neighbor's property without first obtaining his neighbor's permission.

8.  A police officer who does not have a warrant may still approach a home in hopes of speaking to its occupants because any private citizen can do that.  But a homeowner's permission to enter his property is limited to a particular area and to a specific purpose, and there is no customary invitation to enter the curtilage of a home simply to conduct a search as occurred in Jardines' case.

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In the case of Robert Gorham versus the State of Florida, Mr. Gorham was convicted of two counts of burglary of a conveyance with an assault or battery.  His convictions were based on a single entry but involved two different victims.  

Gorham appealed his convictions, and the appellate court ruled that:

1.  His two convictions for burglary was a double-jeopardy violation.

2.  It is the number of entries that triggers burglary charges, not the number of victims.

3.  Because Gorham entered the conveyance only once, he could be convicted of burglary only once.

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In the case of the United States v. Alvin Gaskins, Mr. Gaskins was convicted of conspiracy to distribute narcotics.  He appealed.  The court of appeals reversed his conviction because the prosecutor failed to prove that Gaskins knowingly entered into the conspiracy with the specific intent to distribute drugs. 

The facts of Gaskins' case are as follows:

A jury convicted Gaskins of being a member of a conspiracy that supposedly consisted of more than 20 people and which lasted for about five years. At Gaskins' trial, the prosecutor called 8 cooperating witnesses to testify and presented evidence of more than 14,000 intercepted telephone conversations, visual and video surveillance, and evidence seized during the execution of search warrants.

However, no evidence was presented putting Gaskins together with drugs, or with conversations about drugs, that were involved in the conspiracy. None of the 8 cooperating witnesses, many of whom pled guilty to participating in the conspiracy, described Gaskins as having any knowledge of the conspirators' drug trafficking activities. Also, none of the recorded telephone conversations in which Gaskins participated mentioned drugs or drug transactions, whether in clear or coded language. Nor did any of the conversations of any other conspirators mention drugs or drug transactions in connection with Gaskins. No surveillance detected Gaskins engaging in drug transactions, in the presence of drugs, or engaging in any conspiratorial meetings. And despite the execution of multiple search warrants, including one at the apartment in which Gaskins lived, the government found no guns, drugs, or drug paraphernalia associated with Gaskins. Moreover, although there was substantial evidence of the wealth amassed by other conspirators, there was no such evidence regarding Gaskins. To the contrary, the only evidence was that he lived in a modest apartment with his mother.

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In the case of the United States v. John Doe, a subpoena duces tecum was issued to an individual (named John Doe) during a child pornography investigation.  That subpoena ordered Doe to appear before a grand jury and produce unencrypted contents of laptop computers and external hard drives.

Even though the prosecutor gave Doe what is called "act-of-production immunity," Doe still invoked his Fifth Amendment privilege against self-incrimination and refused to decrypt the hard drives. When he did that, the judge overseeing the case held Doe in contempt of court.  So Doe appealed.

The appellate court agreed with Doe for two reasons:

1.  The decryption and production of the hard drives would have required the use of the contents of Doe's mind; it would not have been merely a physical, nontestimonial act.  It would instead have been tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

2.  Doe's testimony would not have been a “foregone conclusion” because there was no evidence that the prosecutor knew whether any files existed and were located on the hard drives.  In fact, there was no evidence that the prosecutor knew whether Doe was even capable of accessing the encrypted portions of the hard drives.

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Prosecutor's often use something called "inextricably intertwined" evidence.  For example, if someone charged with the crime of rape steals jewelry from his victim after raping her, evidence of that theft is often presented to a jury even though the person on trial has not been formally charged with theft.

This often-used practice of prosecutors has gone largely unchallenged for as long as anyone can remember.  But recently some courts have started to question whether prosecutors should be allowed to present inextricably intertwined evidence to juries.

For example, in the case of the United States versus Jamarkus Gorman, the court stated:

"We have recently cast doubt on the continuing viability of the inextricable intertwinement doctrine, finding that because almost all evidence admitted under this doctrine is also admissible under Rule 404(b), there is often no need to spread the fog of inextricably intertwined over it.  We again reiterate our doubts about the usefulness of the inextricable intertwinement doctrine, and again emphasize that direct evidence need not be admitted under this doctrine. If evidence is not direct evidence of the crime itself, it is usually propensity evidence simply disguised as inextricable intertwinement evidence, and is therefore improper, at least if not admitted under the constraints of Rule 404(b)."

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In the case of the United States versus Jorge Cedeno, the trial judge prevented Cedeno’s lawyer from questioning a detective about the fact that he had lied (and been caught lying) in a prior court proceeding in an unrelated case. 

The trial judge prevented such questioning after considering:

1.    Whether the prior judicial finding addressed the detective’s honesty in that specific case or generally; and

2.    Whether the two sets of testimony involved a similar subject.

The court of appeals disagreed with the trial judge, however, concluding that he should have also considered such things as:

• Whether the lie was under oath in a judicial proceeding or was made in a less formal setting;

• Whether the lie was about a matter that was important or trivial; 

• How much time had gone by since the lie was told;

• Whether there had been any intervening credibility determination regarding the witness;

• The apparent motive for the lie and whether a similar motive existed in the current proceeding; and

• Whether the witness offered an explanation for the lie and, if so, whether his explanation was plausible.

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In the case of Derek Martin versus the State of Florida, Mr. Martin was convicted of possession of cocaine with intent to sell.  Martin appealed, and the court of appeals overturned his conviction because the prosecutor failed to prove that Martin intended to sell the cocaine that he had in his possession.  The court of appeals noted that there was no testimony that the quantity and packaging of the cocaine in this case were indications of Martin's intent to sell as opposed to his having the drug for simply personal use.

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In the federal case of the United States of America versus Napoleon Bustamante, Mr. Bustamante was convicted of illegally reentering the United States, making a false statement in a passport application, and making a false statement in an application for supplemental security income benefits. His convictions centered around the prosecutor’s accusation that Bustamante was not a United States citizen.

In order to prove that accusation at trial, the prosecutor introduced into evidence a document purporting to be a transcription of Bustamante’s birth certificate from the Philippines.

Mr. Bustamante appealed his convictions, and the court of appeals reversed his convictions because the introduction of the document purporting to be a transcription of his birth certificate violated Bustamante’s right to face his accusers as guaranteed to him by the Confrontation Clause contained in the Sixth Amendment to the U.S. Constitution.

The Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."  The United States Supreme Court has held that this guarantee prohibits the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the person on trial has had a prior opportunity to cross-examine him.

The court of appeals in Bustamante’s case ruled that the document purporting to be a transcription of Bustamante’s birth certificate from the Philippines was an affidavit testifying to the contents of the birth records of the Filipino city in which Bustamante was born and was functionally identical to the live, in-court testimony that an employee of the Filipino government office might have provided.  Furthermore, that document was created for the purpose of the Air Force investigation into Bustamante’s citizenship and was made under circumstances that would lead an objective witness to reasonably believe that the statement would be available for use at a later trial.

Therefore, the admission into evidence of this document at Bustamante’s trial violated his right to confront his accusers because he did not have a prior opportunity to cross-examine the person who created it.

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