West Palm Beach Criminal Lawyer Blog

The Rape Shield Statute Does Not Apply to All Sex Crimes

Thursday, April 17th, 2014  |   No Comments »

In the case of Deven Cooper versus the State of Florida, Mr. Cooper was convicted of the crimes of lewd or lascivious battery and molestation.  At his trial, Cooper’s lawyer was not allowed to question Cooper’s accuser about her prior sexual experiences and her denial of any previous sexual experience to a police officer who had investigated the case.  Cooper’s lawyer was not allowed to do so because the trial judge believed that Florida’s Rape Shield Statute prohibits such questions.  But in this particular case, the judge was wrong.

The Rape Shield Statute  states that “specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution.”  However, this statute pertains only to the crime of sexual battery.  Cooper was not charged with committing the crime of sexual battery.  Rather, he was charged with committing the crimes of lewd or lascivious battery and molestation.  Therefore, the judge should not have prevented Cooper’s lawyer from asking the questions he wanted to based upon the Rape Shield Statute.

Man Wrongfully Convicted of Murder is Set Free After 25 Years

Friday, April 11th, 2014  |   No Comments »

It is often because of DNA evidence that wrongfully-convicted people are released from prison.  However, as the following New York Times story demonstrates, that is not always the case.


April 8, 2014

A timeworn phone bill from a Quality Inn in Orlando, Fla., turned out to be one of the most valuable pieces of paper Jonathan Fleming owns.

Mr. Fleming, 51, who was serving the 25th year of a sentence of 25 years to life after being found guilty of a 1989 murder in Brooklyn, was released on Tuesday after new evidence was uncovered in his case. The evidence included a receipt that established he was in Florida less than five hours before the killing.

He stood quietly, his hands clasped behind his back, as his lawyers detailed new evidence that they and the Brooklyn district attorney’s office discovered. “Had it been available at the trial, the likely outcome of the trial would have been different,” an assistant district attorney, Mark Hale, told the judge, Matthew J. D’Emic, as he explained that his office supported Mr. Fleming’s release.

It was only when the judge said that the motion was granted and the indictment dismissed that Mr. Fleming’s composure wavered, his shoulders shaking and his eyes tearing up as he hugged his lawyers. Cries of “Thank you, God,” “Our prayers have been answered now” and “You’re a free man” came from his friends and family in the courtroom.

Mr. Fleming’s is one of dozens of wrongful-conviction cases that the new Brooklyn district attorney, Kenneth P. Thompson, inherited when he took office this year. The office is also combing through 50 cases that a detective, Louis Scarcella, who has been accused of using illegal tactics to frame suspects, was involved in; Mr. Scarcella was not part of Mr. Fleming’s case.

Mr. Thompson’s predecessor, Charles J. Hynes, created the Conviction Integrity Unit to look into questionable cases after criticism over wrongful convictions. Mr. Thompson, who campaigned in part on reforming the district attorney’s office, has so far gained the release of two prisoners who were serving time for murder after new evidence was obtained, and prisoners’ advocates are pushing him to move quickly on other cases. The office on Monday appointed Ronald S. Sullivan Jr., a Harvard Law School professor, to lead the unit, now called the Conviction Review Unit, and added three outside lawyers to help evaluate cases.

Mr. Fleming was convicted of second-degree murder in the killing of Darryl Alston, a rival drug dealer, on Aug. 15, 1989, at the Williamsburg Houses.

His alibi was simple: He was in Orlando at the time of the shooting, on a family trip to Walt Disney World.

During the trial, Mr. Fleming’s lawyers gave evidence showing that he was in Orlando around the time of the murder — plane tickets and video footage and vacation photos from family members. But prosecutors argued he could have returned to Brooklyn and shot Mr. Alston, producing a list with 53 possible flights he could have taken, according to a document prepared by Mr. Fleming’s lawyers, Taylor Koss and Anthony Mayol. And they cast doubt on the testimony from Mr. Fleming’s family members about his whereabouts.

A woman who said she was an eyewitness, Jacqueline Belardo, identified Mr. Fleming as the killer. Though she recanted what she said before sentencing, saying she had identified Mr. Fleming in exchange for a dismissal of grand larceny charges against her, the prosecution contended that Ms. Belardo was lying, according to the document.

In June 2013, the Conviction Integrity Unit began examining Mr. Fleming’s conviction after investigators and lawyers for Mr. Fleming brought it the new witness statements. In November, the unit turned over to the defense police logs that it had come across during its look at the case. The logs showed that Ms. Belardo, the purported eyewitness, had been brought in after being found in a stolen van and charged with grand larceny; after several hours of questioning, she pointed to Mr. Fleming as the killer, according to the defense document. A little over an hour later, her charges were voided and she was released. Ms. Belardo still stands by her recantation, according to the document.

The Conviction Integrity Unit also turned over the phone receipt. At 9:27 p.m. on Aug. 14, 1989, Mr. Fleming had paid a phone bill at the Orlando Quality Inn, making it unlikely he could have made it back to Brooklyn in time for the 2:15 a.m. shooting on Aug. 15. But the receipt was not a part of trial evidence. Mr. Koss said at Tuesday’s hearing that Mr. Fleming had asked about the receipt at the time of the trial and that a detective at the trial was questioned about the receipt and said he did not recall recovering it. Investigators found the receipt in the case file last year.

Other new evidence was a report from the Orlando Police Department, which had looked into Mr. Fleming’s alibi at the New York Police Department’s request. The Orlando police interviewed Quality Inn staff members who remembered Mr. Fleming; at the trial, the only witnesses to vouch for Mr. Fleming’s presence in Orlando were family members.

It was the new documentary evidence that was most compelling in this case, said Mr. Hale, the assistant district attorney, specifically the receipt and the Orlando Police Department’s letter. “We, in looking at the evidence, do not believe we have the present ability to retry the defendant,” nor will the office be able to retry him in the future, Mr. Hale said.

As part of their investigation, the defense and prosecutors then reinterviewed witnesses to the murder, and their accounts pointed to a different suspect.

“They’re bringing my baby home,” said Mr. Fleming’s mother, Patricia Fleming, 72. An innocent man “did all this time,” she said. “It was hard on him and it was hard on me.”

(To view this story online, go to http://mobile.nytimes.com/2014/04/09/nyregion/brooklyn-district-attorney-overturns-conviction-in-1989-murder.html?_r=0&referrer=)

Sending Child Pornography From Your Cell Phone to Your Computer is Not Necessarily a Crime

Friday, April 4th, 2014  |   No Comments »

In the case of the United States versus Michael Grzybowicz, Mr. Grzybowicz was charged with, among other things, committing the federal crime of distributing child pornography.  That charge was based upon evidence that four pictures of the vagina of a two-year-old girl had been discovered on Grzybowicz’ cell phone and that those pictures had been sent from his cell phone to his own Yahoo email account.  At least two of those pictures were then downloaded onto Grzybowicz’ home computer.

Grzybowicz went to trial and was convicted of distributing child pornography.  But he appealed his conviction because:

1.  The prosecutor presented no evidence at trial that Grzybowicz had transferred the pictures to another person or even made them available to another person.

2.  Although links to a child pornography file-sharing website were found on his computer, no evidence was presented at trial that the pictures on that computer were stored in a shared folder that was accessible to others or that the pictures were ever uploaded to a publicly-accessible website.

The court of appeals agreed with Grzybowicz saying, “It is not enough that Grzybowicz sent the four pictures he took with his cell phone to his own email address. By doing that, he may have taken a step in the direction of distributing those images to others but the statute does not criminalize taking steps toward distribution or getting ready to distribute, it criminalizes distribution.”

Because the prosecutor did not present any evidence that Grzybowicz transferred child pornography to other people or allowed others access to his pictures, the court of appeals ruled that he did not commit the crime of distributing child pornography.

Even the Police Can Rely Upon the Stand-Your-Ground Law

Friday, March 28th, 2014  |   No Comments »

In the case of Brad Heilman versus the State of Florida, Heilman was a correctional officer employed by the Florida Department of Corrections who worked at the Lake Correctional Institution in Lake County, Florida. While on duty, Heilman and an inmate became involved in a physical altercation that resulted in physical injury to the inmate. Heilman was later charged with the crime of aggravated battery. He then filed a motion to dismiss his case based upon Florida’s “stand-your-ground” law.  The presiding judge denied Heilman’s motion to dismiss because the judge did not believe that the stand-your-ground law could be used by a correctional officer to have his case dismissed.  The judge ruled that correctional officers must instead rely upon another law to be able to use force against an inmate, but that particular law does not provide for a case getting dismissed prior to trial.  Heilman appealed, and the court of appeals agreed with him saying that a correctional officer is allowed to ask that his case be dismissed based upon the stand-your-ground law.

Posted in: Self-Defense

It is Double Jeopardy for Someone to be Convicted of Both Sexual Battery and Lewd or Lascivious Molestation

Friday, March 21st, 2014  |   No Comments »

In the case of Jehu Ramirez versus the State of Florida, Mr. Ramirez was found guilty by a jury of both of the crimes of sexual battery and lewd or lascivious molestation.  The facts of this case are as follows:

On April 9, 2010, Ramirez’ girlfriend, Ana Salinas, was babysitting  a child who had the initials “A.Z.” at Salinas’ house while A.Z.’s mother was at work. Ramirez lived with Salinas and was the only adult male in the house on that day. When A.Z.’s mother picked her up, A.Z. told her that Ramirez touched her “vulva,” which was the word A.Z. used to refer to her vagina. Later that day, A.Z’s mother took A.Z. to the hospital where she was examined by a nurse practitioner. The examination did not find any evidence of sexual abuse, but A.Z.’s blood was found in her panties.

Several days later, A.Z. was interviewed by a member of the child protection team (or “CPT”).  A.Z. told the CPT interviewer that a man put his finger inside her “vulva” when she was at Salinas’ house while her mother was at work.  She told the CPT interviewer that the incident happened in a bedroom while Salinas was cooking food for the other children at the house, and she explained that the man opened her legs and put his finger all the way inside of her. She also told the CPT interviewer that the man touched her “bumpie,” which was the word A.Z. used to describe her buttocks.

The following day, Ramirez was interviewed by a deputy with the Jacksonville Sheriff’s Office. He initially denied touching A.Z. inappropriately, but he eventually admitted to sexually abusing her by putting his fingers inside her vagina. He stated that he was in his bedroom with A.Z. when the abuse occurred and his description of the incident matched the description given by A.Z. to the CPT interviewer. Ramirez was then arrested and charged with the crime of sexual battery for “placing his fingers inside the vagina of A.Z.” and with the crime of lewd or lascivious molestation for “touch[ing] the breast, genitals, genital area, or buttocks, or the clothing covering them, of A.Z.”

Ramirez appealed and argued that his convictions for both sexual battery and lewd or lascivious molestation violated the prohibition against double jeopardy because the lewd or lascivious molestation conviction was for the same touching of A.Z.’s vagina that resulted in the penetration of her vagina which was the basis for his sexual battery conviction.

The court of appeals agreed with Ramirez and reversed his conviction for lewd or lascivious molestation.

Not Enough Evidence for Stalking Injunction

Thursday, March 13th, 2014  |   No Comments »

In the case of Kevin Touhey versus Frank Seda, a judge issued an injunction for protection against stalking based on the following facts:

Mr. Seda filed a sworn petition for injunction for protection against stalking.  In his petition, Seda stated that he has been afraid of Mr. Touhey since January 2012 as a result of Touhey repeatedly attempting to contact Seda and because Touhey threatened and harassed him and his employees.  At the hearing on the petition, however, Seda testified that the alleged stalking occurred only since about late September 2012, when Touhey’s son pulled a gun on Seda.  Seda claimed that Touhey sent him a text message at that time, stating “[W]e can resolve this problem.” Seda admitted that he had dinner with Touhey and was a guest at Touhey’s home on various occasions between March 2012 and June 2012.

The judge asked Seda to provide specific examples of the alleged stalking, to which Seda testified that Touhey called and visited his office, asking Seda’s employees about his whereabouts.  Seda did not indicate that any threats were made; rather, he claimed that Touhey was trying to intimidate him.  Seda testified that he “fears for [his] life” as a result of the incident with Touhey’s son, though only Touhey, not his son, was named in the petition.

Seda produced three witnesses to support his stalking claims, which primarily involved indirect contact.  All three witnesses worked with both Seda and Touhey in some capacity. The first witness testified that he did not have any firsthand knowledge of the alleged incidents.  The second witness testified that Touhey went to Seda’s office once and called the office twice in the past month but made no threats and simply asked for Seda.  And the third witness testified that he was not aware of any stalking.

Mr. Touhey appealed the judge’s decision to issue an injunction against him, and the court of appeals agreed with Touhey for the following reasons:

1.  The evidence presented at the hearing established only a single incident of “following,” which was not malicious.

2.  A reasonable person would not suffer “substantial emotional distress” as a result of Touhey visiting once and calling twice to inquire about Seda’s whereabouts or the single text message following the incident with Touhey’s son.

3.  Based upon Seda’s testimony at the hearing, it appears that his fear and distress actually stemmed from the incident with Touhey’s son.

4.  Touhey had a legitimate purpose for trying to get in touch with Seda.  Mr. Seda and Touhey’s wife were business partners, and Mr. Touhey worked for his wife and handled some of the management responsibilities of the business. Seda and Touhey’s wife were in the process of dissolving their business relationship. Thus, Mr. Touhey had a legitimate purpose for attempting to contact Seda, as Mr. Touhey participated, to some extent, in Seda’s business.

Because the evidence was not sufficient to prove that Touhey stalked Seda, the court of appeals reversed the injunction for protection against stalking and ordered the lower-court judge to dismiss the injunction.

Posted in: Injunctions, Stalking

The Police Need More Than Just the Smell of Alcohol to Arrest You for DUI

Thursday, March 6th, 2014  |   No Comments »

In the case of Robert Santiago versus the State of Florida, the facts were as follows:

The police received an anonymous phone call about a car parked at the end of a dead end street at 2:00 a.m. with its headlights periodically flashing on and off. When officers arrived at the location, they found Mr. Santiago and a female passenger inside the vehicle. The keys were in the ignition so music could play, but the engine was not running. After an officer smelled alcohol on Santiago’s breath, Santiago stated that he had drunk a couple of beers, but he was not driving. When asked why he was at that location, Santiago gave the officers a vague explanation. The police then ordered him to step out of the car, and when he did so a small plastic bag containing cocaine dropped from his lap onto the ground. The officers searched the car and located a short plastic straw that they believed to be drug paraphernalia. The female passenger, who owned the vehicle, told the officers that both the cocaine and the paraphernalia belonged to Santiago. He was then arrested for possession of cocaine and drug paraphernalia.

Later, in court, the officer testified that the smell of alcohol combined with Santiago’s admission that he had drunk a couple of beers did not lead him to conclude that Santiago might be under the influence of alcohol. Nevertheless, he still ordered Santiago to get out of his car. The court of appeals said that the police need more than just the smell of alcohol to order someone out of his car to do a DUI investigation. Examples of such things include speeding during the early morning hours, bloodshot and watery eyes, and being slumped over the steering wheel with the engine running and the headlights on. Because none of those things were present in Santiago’s case, it was illegal for the police to order him out of his car. Therefore, the plastic bag containing cocaine that dropped from his lap onto the ground and the drug paraphernalia found in the car could not be used against him in court.

Posted in: Florida DUI Laws

Entrapment and Craigslist

Tuesday, February 25th, 2014  |   No Comments »

In the case of Kevin Cantrell versus the State of Florida, Mr. Cantrell was convicted of traveling to meet a person whom he believed was a minor for the purpose of engaging in illegal sex and unlawfully using a computer service to solicit a person whom he believed was a minor in order to engage in illegal sex.  The facts of this case are as follows:

As part of a sting operation, a police officer with the Tallahassee Police Department posed as a minor and posted an ad in the “casual encounters” section of Craigslist in October 2011. The title read: “Hot Fresh Latina Lookn 4 1 Nighter—w4m [woman looking for man] (NE Tally).” The body of the ad read: “Want exactly what it says … thats all NSA [no strings attached] & after we forget we met. ONLY serious responses!”  Cantrell replied that he was interested, and this exchange followed between 10:03 and 10:25 p.m.:

OFFICER: u down wit a yunger Latina, hit me bk bb, lets tlk.

CANTRELL: for sure … pics?

OFFICER: u ain’t gettin a pic unless we decide we wanna meet up, I’m almost 15 and if u cool with that hit me bk and we can move to text.

Cantrell went out with some friends and when he returned, he responded at 2:41 a.m., “its cool bb,” and they began an exchange of text messages. Between 3:01 and 3:30 a.m., Cantrell told the person whom he believed was a minor what sexual activity he wanted to engage in with her, and she told him her parents were out of town and she had the house to herself, etc. They switched to telephones and Cantrell discovered that the minor was in the ninth grade in high school, that she had never engaged in sex before, and he agreed to bring condoms. He was arrested when he arrived at the house where he was to meet her at around 4:06 a.m.

Cantrell appealed his conviction and argued to the appellate court that the undercover officer’s action of lying about her age was entrapment because participation in the Craigslist site requires that a person acknowledge that he or she is 18 years of age or older by checking a box.  Thus, Cantrell’s conversation with the officer was legal when he entered into it, and the officer improperly induced him into interacting with a person whom Cantrell believed was a minor.

The court of appeals said that what the undercover officer did was not entrapment because:

1.  The officer’s lies did not create a substantial risk that an otherwise law-abiding citizen would commit a crime.

2.  A mere invitation under false pretenses is not entrapment.  Something more is needed, such as an undercover officer pleading with a person to commit a crime.

3.  After the undercover officer lied about her age, Cantrell enthusiastically participated in their discussions, he suggested that they meet as soon as possible, and he did not hesitate in the least.

DUI Manslaughter Conviction Overturned

Monday, February 17th, 2014  |   No Comments »

In the case of Harley Pennington versus the State of Florida, a jury convicted Mr. Pennington of DUI manslaughter based on the following facts:

Pennington was driving his SUV while intoxicated. The person who was killed in the accident had purchased his new, high-performance, sport motorcycle, (which had more horsepower than most small sedans), just eleven days earlier. He had alcohol in his bloodstream at the time of the accident and was not licensed to drive the motorcycle. According to witnesses who testified to what they saw shortly before the collision, Pennington was weaving within his lane, but did not actually leave his lane at any time. The driver of the motorcycle was seen shortly before the accident driving his motorcycle approximately 80 to 90 miles per hour in a 45-mile-per-hour speed zone.  He almost hit another vehicle as he sped by and cut in front of it at a very high rate of speed, and he was not wearing a helmet.

The unusual fact in this case is that the motorcyclist had actually ridden up and over the top of the SUV. There was no damage to the front forks of the motorcycle, which all of the experts agreed would have been damaged in a frontal collision, but there was extensive damage to the undercarriage of the motorcycle.  The prosecution’s expert testified that one possible explanation was that the motorcycle was doing a wheelie when the accident occurred. Pennington’s expert testified that based upon the evidence, the motorcycle had to have been doing a wheelie when it was struck.

Pennington appealed the jury’s verdict and argued to the court of appeals that even if he had not been under the influence of alcohol, the fact that the motorcycle was in wheelie position meant that its headlight was pointing towards the sky and, therefore, he could not have seen the motorcycle coming in the dark before he began his left turn in front of it. Thus, the fact that he was driving under the influence of alcohol did not cause or contribute to the death of the motorcyclist, and Pennington could not be guilty of DUI manslaughter because the law requires that in order to convict someone of DUI manslaughter, the prosecutor has to prove that the individual operated a vehicle while under the influence of alcohol to the extent that his normal faculties were impaired or with an unlawful blood alcohol level, and that as a result of such operation, the person caused or contributed to causing the death of another person.

The court of appeals agreed with Pennington.  It concluded that although there was enough evidence to convict him of simple DUI, there was not enough evidence to convict him of DUI manslaughter.  The court of appeals therefore reversed Pennington’s conviction for DUI manslaughter.

Your Probation Can’t Be Violated Based Just On Hearsay

Tuesday, February 11th, 2014  |   No Comments »

If you have been charged with violating your probation, you should know that your probation can’t be violated based just upon hearsay.  Hearsay is a statement made out of court that is offered for its truth in court, and although hearsay evidence is admissible at a violation-of-probation hearing, your probation can’t be violated if the only evidence that the prosecutor has is hearsay.

This situation arose in the case of John McDoughall versus the State of Florida where the facts were as follows:

“McDoughall was placed on three-years probation for possession of oxycodone and marijuana. One of the conditions of probation was that McDoughall not commit any new crimes. While on probation, McDoughall was pulled over for a traffic violation. As a result of what occurred during the traffic stop, McDoughall was charged with: (1) possession of a weapon/ammunition by a felon; (2) trafficking hydromorphone; (3) trafficking oxycodone; (4) possession of alprazolam; (5) driving with a suspended license; (6) possession of Ritalin; and (7) possession of methadone.

At the violation of probation (“VOP”) hearing, the trial court heard testimony from the officers who performed the traffic stop. The officer who initiated the stop discovered that McDoughall’s license was suspended and that he was on felony probation for opiate possession. A second officer (“responding officer”) arrived on the scene and placed McDoughall under arrest for violating his probation by driving with a suspended license. Before the vehicle was towed, the responding officer conducted a vehicle inventory, which revealed “approximately 150 pills … of different prescription medications” in the center console. The responding officer testified that she did not personally test the pills but that she contacted Poison Control and sent the pills to the lab to confirm that they were oxycodone.”

The trial judge deciding McDoughall’s case ruled that he violated his probation in part because of his new criminal charges of drug possession, trafficking in drugs, and possessing drugs without a prescription.  McDoughall appealed the trial judge’s decision because the only evidence presented at his violation-of-probation hearing identifying the pills as oxycodone was hearsay.

The appeals court agreed with McDoughall.  That court stated that while hearsay is admissible at a violation-of-probation hearing, a person’s probation cannot be revoked solely on the basis of hearsay evidence.  The hearsay has to be corroborated by non-hearsay evidence before a judge can find that a person violated his or her probation.

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