West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

           In the case of Kevin Jalbert versus the State of Florida, Mr. Jalbert was charged with committing the crime of unlawful possession of child pornography.  He filed a motion to dismiss his case in which he argued that the prosecutor had failed to prove that the photos in his case showed actual children (that is, individuals less than 18 years old) rather than computer-generated "virtual" children or adults resembling children.

          The appellate court deciding Jalbert's case agreed with him that in order to convict him of the crime of unlawful possession of child pornography, the prosecutor was required to prove that the photos depicted actual children rather than computer-generated children or adults resembling children.  

          In support of this position, the appellate court cited to the case of Ashcroft versus Free Speech Coalition in which the United States Supreme Court held the Child Pornography Prevention Act of 1996 to be unconstitutional because it banned a range of sexually-explicit images, sometimes called "virtual child pornography," that appeared to depict minors but were actually produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology.

          In striking down this law, the Supreme Court stated that this Act prohibited speech that "records no crime and creates no victims by its production.  Virtual child pornography is not intrinsically related to the sexual abuse of children.  While the [prosecution] asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect.  The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts."

          Those supporting the Act also argued that pedophiles might use virtual child pornography to seduce children.  The Supreme Court rejected this argument stating that "speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."

          Although the appellate court deciding Mr. Jalbert's case agreed with him that the prosecutor had to prove that the photographs depicted actual children, the court nevertheless upheld the trial judge's decision to deny Jalbert's motion to dismiss.  Why?  Because a motion to dismiss is decided solely by a judge, whereas it is up to a jury rather than a judge to decide whether pictures depict actual children versus virtual children.  Insofar as that issue is concerned, the jury has the final word.

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           Florida law defines the crime of second-degree murder as "the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual."

          Manslaughter, on the other hand, is defined as "the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . . and in cases in which such killing shall not be excusable homicide or murder."

          In the case of James Poole versus the State of Florida, Mr. Poole was charged with the first-degree murder of Darryl Newsome, one of Poole's drinking buddies.  The facts of this case are as follows:

          "Newsome had no fixed address, and his acquaintances referred to him as a 'floater.' Newsome was a large man; he was six feet tall, weighed 273 pounds, and was very strong. Newsome also had a reputation for violence, especially after he had consumed alcohol or drugs

          Newsome, Poole, and several other men were regular visitors at the recreational vehicle where Jerry Headley lived in Tampa. Newsome frequently bullied Headley. Headley had cancer, and he was debilitated as a result of his illness.

          On the afternoon of October 17, 2007, Newsome, G.M., and one or two other men had gathered at Headley's recreational vehicle. The recreational vehicle was quite small, and the men congregated outside drinking beer and whiskey. Before the incident that led to his death, Newsome had also been smoking crack cocaine.

          Poole arrived at Headley's recreational vehicle when it was beginning to get dark. The drinking continued. G.M. complained to Poole that Newsome had taken Headley's electric fan. G.M. was lying on the ground because of the effects of his intoxication. Newsome began to kick G.M. in the back and told him that he was going to beat him. Poole cautioned Newsome to leave G.M. alone because G.M. 'was too drunk to even mess with.'  Next, Newsome went inside Headley's recreational vehicle. Taking advantage of Newsome's retreat, G.M. wisely followed Poole's advice to leave.

          Later in the evening, all of the men had left the area except Headley and Poole. The two men were inside Headley's recreational vehicle watching a football game on television. Newsome suddenly returned a few minutes after he had departed and sat down inside the recreational vehicle. The incident that led to Newsome's death quickly followed. Thus the only witnesses to the killing of Newsome were Headley and Poole. For some unexplained reason, Headley did not testify at trial. For this reason, Poole provided the only evidence concerning what led to Newsome's death.

          According to Poole, when Newsome returned to the recreational vehicle, he was visibly angry. Newsome sat in a chair with his fists balled up, his eyes as 'big as half dollars,' and moving his lips but not saying anything. Poole had armed himself with a steak knife from Headley's kitchen because he was afraid Newsome was going to hurt either him or Headley. Newsome was a larger man than Poole. Poole was afraid of Newsome; he believed that he would not be able to defeat Newsome in a fight.

          Suddenly, Newsome got up and lunged at Poole in the cramped confines of the recreational vehicle.  (Poole later told detectives that he believed Newsome was getting ready to attack either him or Headley.)  Poole removed the steak knife from his pocket and stabbed Newsome once. Poole testified that when Newsome got up and lunged at him he was in fear that Newsome was going to harm him because Newsome was still angry about the earlier incident when Poole had told Newsome to break off his attack on the obviously-intoxicated G.M. Poole said that he was motivated by fear for his own safety, not hatred of Newsome or a wish to kill him. However, there was no evidence that Newsome was armed.

          Poole's single strike with the knife punctured Newsome's heart and the left side of his diaphragm.  Newsome survived long enough to stagger out of the recreational vehicle to a pay phone at a nearby convenience store. Newsome used the phone and apparently called 911. After he had used the pay phone, Newsome collapsed in the convenience store parking lot. Two Hillsborough County Sheriff's deputies who were conducting an unrelated surveillance operation saw Newsome and came to his aid. Newsome soon died as a result of internal hemorrhaging resulting from the stab wound.

          Meanwhile, Poole and Headley remained in the recreational vehicle and awaited the arrival of law enforcement officers. The sheriff's deputies who responded to the scene described both men as having the odor of alcoholic beverages about their persons. Later, a toxicology screen performed on Newsome by the medical examiner showed an alcohol level of .06 percent in his blood and was also positive for the presence of cocaine."

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          In the case of McCoy versus the State of Florida, Cynthia McCoy was charged with committing the crime of trafficking in hydrocodone based upon her possession of a pill bottle that contained Lorcet tablets and that was labeled as belonging to her husband.  Her defense at trial was that she was holding the pills for her husband.

          The evidence presented at Ms. McCoy's trial showed that:

          "[T]he [arresting] officer testified the pill bottle contained two different colors of Lorcet tablets and the bottle, which apparently had been filled the day before for 60 pills, contained only 13 pills. In addition, the arresting officer testified he asked [Ms. McCoy] if she used the pills, and she responded she had used some of the pills in the past.

          To explain these relevant inconsistencies, [Ms. McCoy and her] husband testified at trial the husband took Lorcet pills daily for his back problems and collected the monthly Lorcet prescriptions together in one jar, which remained locked in a safe in their home. The husband explained he would take a small number of those pills and put them in a prescription bottle that his wife would carry for him during the day because his work clothing lacked pockets. In addition, [Ms. McCoy] testified she told the officer she had taken the pills in the past because she had previously been prescribed Lorcet by the same physician."

          In Florida, the "prescription defense" provides that "[i]t is unlawful for any person to be in actual . . . possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice . . . ."  This defense is typically used by those who have a valid prescription written directly on their behalf for the pills in their possession.  But in this case, Ms. McCoy did not have a valid prescription written directly on her behalf for the pills in her possession; her husband did.

          The appellate court deciding McCoy's case began its analysis by noting that the words "lawfully obtained" contained in the prescription defense authorize possession of a controlled substance only for those people who have a legally-recognized reason for such possession.  According to Florida law, pharmacies may lawfully dispense medications to a consumer or his agent.  There is also other Florida law which states that a pharmacist may dispense a controlled substance "when the pharmacist or pharmacist's agent has obtained satisfactory patient information from the patient or the patient's agent."

          In Ms. McCoy's case, her defense at trial was that she was holding her husband's pills on his behalf.  If she was in fact doing so, then she was his agent and that, in turn, authorized her possession of those pills.  In other words, her actions were legal.

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