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

           I've just launched a new website about my law firm called Chapman Criminal Defense.  It discusses the different areas of criminal law that I practice in such as federal crimes, sex offenses, and sealing records.  Hopefully you will find it interesting and informative.

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           In the case of C.W. versus the State of Florida, a juvenile, whose initials were "C.W.," was arrested for the crime of resisting arrest without violence.  The relevant facts of this case are that:

"[C.W. was] standing in the road, a couple of feet from the swale, and refusing to move off of the street when the officer asked him to, although the record also shows that there was no traffic on the street at the time. The record does reveal that C.W. was talking to another boy, his cousin, when they saw the police car slowly approaching. The officers veered slightly around the kids, and asked them to move out of the roadway. When they did not, the officers parked, approached the boys and ordered them to move out of the road and onto the unpaved swale. At this point, the record shows that C.W refused to step out of the street and used profanity. The officers then arrested him."

          Florida's Third District Court of Appeal reversed C.W.'s conviction for resisting arrest without violence and in the course of doing so noted that an individual cannot be convicted of this crime unless the prosecutor is able to prove both that:

          1.  The officer was engaged in the lawful execution of a legal duty; and

          2.  The defendant's action constituted obstruction or resistance of that lawful duty.

          But what exactly is a "legal duty?"  Under Florida law, legal duties include such things as:

          1.  Service of process;

          2.  Legally detaining a person; or

          3.  Asking for assistance in an emergency situation; or

          4.  Impeding an officer's undercover activities by acting as a "lookout" during the commission of a crime.

          In this case, the appellate court ruled in C.W.'s favor because:

          1.  The officers were not engaged in the lawful execution of a legal duty when they initially asked C.W. to step out of the street.

          2.  Although the officers' initial request that C.W. move a small distance out of the road was a reasonable part of their job as community safety officers, they had no legal duty to insist that C.W. comply with their request and to enforce their insistence by arresting him when the surrounding circumstances failed to warrant such action.

          3.  There was no evidence that C.W. actually interfered with traffic, and the mere possibility that he might eventually interfere with traffic was insufficient to justify the officers' actions.

          The court concluded by stating that "[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence."

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           Clemency has been defined as "the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it."

          I posted an article on my website, Florida Criminal Records:  Frequently Asked Questions, that was written by Florida attorney Reginald Garcia in which he discusses changes in Florida's clemency law that went into effect earlier this year.  I highly recommend Mr. Garcia's article to anyone who is interested in learning more about these significant changes in the law.

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           An article that appeared two days ago in the Orlando Sentinel reported that an autopsy performed on Florida A & M drum major Robert Champion concluded that his death was a homicide.  But what type of homicide will those responsible for his death ultimately be charged with?  first degree murder?  second degree murder?   third degree murder?  manslaughter?

          My guess is that they may likely be charged with the crime of manslaughter which Florida law defines as "[t]he 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 Darrin Terranova versus the State of Florida, Mr. Terranova was charged with committing the crimes of manslaughter and aggravated battery after beating another individual who ultimately died from his injuries.  Because Robert Champion also died after being beaten, it may be the case that those responsible for his death will be charged with the same offenses that Terranova was charged with and convicted of.

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           In the case of Wells versus the State of Florida, Kim Wells appealed a judge's decision denying her petition to expunge her criminal record without first holding a hearing.  An article that I wrote on my website, Florida Criminal Records:  Frequently Asked Questions, examines the Wells case and why it was that a court of appeals agreed with her.

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           In the case of William Stieh versus the State of Florida, Mr. Stieh was charged with the crime of aggravated battery after stabbing another individual.  The relevant facts of Stieh's case are as follows:

          "Conneally, the victim; the victim's girlfriend; Stieh, . . . ; and Jeffrey Flaherty, [Stieh's] friend—engaged in a consensual sexual encounter.  Conneally and his girlfriend were invited to join Stieh and Flaherty in the hotel room rented by Stieh.  After the three men had sex with Conneally's girlfriend, she and Conneally left the hotel.  Shortly after leaving, the two realized their wallets were missing, and they returned to Stieh's hotel room to search for them.  Upon arriving, Conneally initiated a physical confrontation with Flaherty.  In defense of himself and Flaherty, Stieh stabbed Conneally three times.

          At trial, the [prosecutor] did not contest that the victim was significantly larger in stature than Stieh—at 5 feet 5 inches tall and 130 pounds—and Flaherty—at 5 feet 7 inches tall and 160 pounds.  It was also uncontested that the victim was demeaning, demanding, and aggressive during the sexual encounter prior to the stabbing.  Finally, of the four people directly involved in the incident, only the victim testified that he was not angry upon his return to the hotel.  The other three testified that the victim was angry and that he forced entry into Stieh's hotel room.  The victim, however, testified that he only became angry upon finding the wallets under a trash can outside of the hotel room.  Thus, there was a consensus among the parties and witnesses that the victim either arrived angry and looking for a confrontation or became angry and confrontational after locating the wallets that appeared as though they had been intentionally hidden.

          The victim testified that while he and Flaherty were standing outside of the room, he found the wallets under a trash can.  He became angry and shoved Flaherty back inside the hotel room.  The two fought, the victim shoving Flaherty, and Flaherty punching the victim.  At some point during the skirmish, the victim realized he was bleeding and left the hotel room.  The victim did not testify to a physical altercation with Stieh and did not recall being stabbed.

          After the altercation and stabbing, two law enforcement officers arrived on the scene and interviewed Stieh and Flaherty.  Both officers testified that Stieh admitted stabbing the victim.  Officer Murray stated that Stieh told him he was scared and thought the victim was going to hurt Flaherty.  Stieh also told the officer the victim was 'off the chain.'  Officer Stewart testified Stieh told him that he had left the room after the victim and the victim's girlfriend returned to look for the wallets and that when he returned to the room, the victim was attacking Flaherty.  Stieh then told the officer that the victim charged him, that he told the victim to 'get back,' that the victim charged again, and that Stieh stabbed him.

          [Stieh]presented the testimony of several witnesses, including the victim's girlfriend, Flaherty, and Stieh.  Conneally's girlfriend testified that the victim was angry and yelling when they returned to the hotel.  She stated the victim punched and shoved both Flaherty and Stieh. Although she did not see the actual stabbing, she testified she did see the victim and Stieh standing face to face.

          Flaherty testified the victim was screaming that he was going to kill both Stieh and Flaherty for stealing the wallets.  He stated the victim attacked him and dragged him from his bed.  Flaherty yelled for Stieh's help, and Stieh attempted to separate the victim and Flaherty.  According to Flaherty, the victim then threw Stieh around the room and up against the door.  At some point, the victim forced Stieh out of the room, and Flaherty did not see the stabbing.

          Stieh testified the victim returned to the hotel screaming and threatening to kill Stieh. He confirmed Flaherty's account of the events, adding that he attempted to leave the hotel room but was caught by the victim and they exited the room together.  Stieh testified that upon seeing the wallets in the hallway, the victim yelled that he was going to kill them.  Stieh again tried to escape, this time back into the room, but the victim caught him.  The victim attempted to punch Stieh, and Stieh picked up a knife from the dresser and stabbed the victim.  Stieh testified he was scared for his life."

          After Stieh had presented all of his evidence, Stieh's lawyer asked the judge to find Stieh not guilty because the prosecutor had failed to disprove Stieh's theory of self-defense.  The judge did not do so, and Stieh was ultimately convicted of aggravated battery.

          On appeal, Florida's Second District Court of Appeal stated that when an accused individual presents a prima facie case of self-defense at his trial, the prosecutor has to prove beyond a reasonable doubt that the accused did not act in self-defense.  If the prosecutor fails to do that, the trial judge must find the accused not guilty.  The Court continued on to state that according to Florida law:

          "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

          The legal presumption that a defendant has a reasonable fear of great bodily harm sufficient to justify the use of deadly force applies when

[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle."

          The Second District Court of Appeal noted that in Stieh's case:

          1.  Stieh had a right to be in the hotel room because he had lawfully rented the room for the night;

          2.  Under Florida law, the hotel room qualified as a dwelling or residence;

          3.  Only one witness, the victim Conneally, testified that he did not forcibly enter the hotel room in search of the wallets. However, three other witnesses testified that Conneally forcibly removed Stieh from the room at one point during the altercation.  Therefore, under Florida law, Stieh had a right to defend himself;

          4.  Furthermore, two of the prosecutor's witnesses supported Stieh's self-defense argument when they testified that immediately after the stabbing, Stieh told them that he was acting in defense of Flaherty.  The Court observed that defense of another person is permitted under Florida law.

          The appellate court concluded that because the prosecutor failed to present legally-sufficient evidence to overcome Stieh's theory of self-defense, the lower-court judge should have found him not guilty of aggravated battery.  Accordingly, the Second District Court of Appeal sent Stieh's case back to the lower court with instructions that Stieh should be found not guilty.

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         In the case of Clayton Harris versus the State of Florida, the Florida Supreme Court was asked to decide this question:  When does a drug-detection dog's alert to the outside of a vehicle provide a police officer with probable cause to search the inside of that vehicle without a search warrant?

          The relevant facts in the Harris case are as follows:

          "[O]n June 24, 2006, Liberty County Sheriff's Canine Officer William Wheetley and his drug-detection dog, Aldo, were on patrol.  Officer Wheetley conducted a traffic stop of Harris's truck after confirming that Harris's tag was expired.  Upon approaching the truck, Officer Wheetley noticed that Harris was shaking, breathing rapidly, and could not sit still.  Officer Wheetley also noticed an open beer can in the cup holder.  When Officer Wheetley asked for consent to search the truck, Harris refused.  Officer Wheetley then deployed Aldo.  Upon conducting a 'free air sniff' of the exterior of the truck, Aldo alerted to the door handle of the driver's side.

          Underneath the driver's seat, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag wrapped in a shirt.  On the passenger's side, Officer Wheetley discovered eight boxes of matches containing a total of 8,000 matches.  Officer Wheetley then placed Harris under arrest.  A subsequent search of a toolbox on the passenger side revealed muriatic acid.  Officer Wheetley testified that these chemicals are precursors of methamphetamine.  After being read his Miranda rights, Harris stated that he had been cooking meth for about one year and most recently cooked it at his home in Blountstown two weeks prior to the stop.  Harris also admitted to being addicted to meth and needing it at least every few days."

          The Supreme Court stated that whether or not a drug dog's alert to the outside of a vehicle provides an officer with probable cause to search the inside of that vehicle without a search warrant depends upon the dog's reliability to detect illegal substances within a vehicle.  In order to establish such reliability, a prosecutor must present evidence of the following things:

          1.  All records and evidence that are necessary to allow the trial judge to evaluate the dog's reliability in detecting illegal substances;

          2.  Due to the fact that there is no uniform standard for the training and certification of drug-detection dogs, a prosecutor must explain the training and certification so that the trial judge can evaluate how well a dog is trained and whether it falsely alerted during its training;

          3.  If a dog did falsely alert during its training, a prosecutor must provide evidence of the percentage of false alerts;

          4.  A prosecutor must keep and present records of a dog's actual performance in real cases, including the dog's successes (defined as alerts where illegal substances were found that a dog was trained to detect) and failures (defined as false or unverified alerts where illegal substances were not found that a dog was trained to detect);

          5.  A prosecutor must be given an opportunity to present evidence explaining the significance of any false alerts, as well as a dog's ability to detect or distinguish residual odors.  (An example of a residual odor is if someone were to have an odor of cocaine on his hands and he then touches a car's door handle, that handle might, in turn, have a residual odor of cocaine on it.); and

          6.  A prosecutor must present evidence of the experience and training of the police officer handling the dog.

          In Mr. Harris's case, the Supreme Court concluded that the dog's alert to the truck's door handle did not provide his handler with probable cause to search the inside of the truck without a search warrant for the following reasons:

          a.  Although the dog's training records revealed that he performed satisfactorily 100% of the time during part of 2005 and 2006, no testimony was presented about whether his satisfactory performance included any false alerts;

          b.  Little evidence was presented about the details of the dog's training, including whether his trainer was aware of the locations of the drugs and whether the training simulated a variety of environments and distractions;

          c.  The trainer did not keep records of the dog's false alerts;

          d.  No evidence was presented regarding the criteria necessary for the dog to become certified;

          e.  No evidence was presented regarding the dog's ability to detect residual odors; and

          f.  By itself, the dog's alert to the door handle of Harris's truck did not provide the arresting officer with probable cause to believe that drugs were present inside the truck.

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           It is a federal crime for a convicted felon to be in unlawful possession of a firearm.  The maximum sentence for that crime is typically 10 years in prison.  If, however, a convicted felon has three prior convictions for a violent felony or serious drug offense when he unlawfully possesses a firearm, the punishment increases to a minimum prison sentence of 15 years.  

          But what exactly is a violent felony?  In recent years the United States Supreme Court has addressed this question in several cases including the recent case of Sykes v. United States.  In that case, Marcus Sykes pled guilty to being a convicted felon in possession of a firearm.  Two of his prior felony convictions were for armed robbery, while a third conviction was for the felony offense of vehicle flight in violation of Indiana's law regarding resisting a law enforcement officer.  The facts of Sykes' vehicle-flight violation are as follows:

"After observing Sykes driving without using needed headlights, police activated their emergency equipment for a traffic stop.  Sykes did not stop.  A chase ensued.  Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence, and struck the rear of a house.  Then he fled on foot.  He was found only with the aid of a police dog."

          The trial judge who sentenced Sykes decided that he had three prior violent felony convictions on his criminal record, one of them being the Indiana vehicle-flight offense.  Sykes appealed that judge's decision.  Unfortunately for Sykes, the U.S. Supreme Court agreed with the trial judge's decision.  

          In ruling that the Indiana vehicle-flight offense was indeed a violent felony, the Supreme Court reasoned that:

"The attempt to elude capture is a direct challenge to an officer's authority.  It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon's conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide.  In Sykes' case, officers pursued a man with two prior violent felony convictions and marijuana in his possession. . . .  Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended. . . .  And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest.  Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.  Risk of violence is inherent to vehicle flight.   Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. . . .  It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others.  Flight from a law enforcement officer invites, even demands, pursuit.  As that pursuit continues, the risk of an accident accumulates.  And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture."

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           The facts in the case of the State of Florida versus Jeffrey Singming Sun are as follows:

          "A deputy arrested Jeffrey Sun's brother for driving under the influence. In the car, the deputy found a notebook. Seeing that the notebook contained information on different pharmacies and dollar amounts, the deputy suspected doctor shopping. This suspicion led him to turn the notebook over to Detective Eric Keith. Detective Keith inspected the notebook and started an investigation that brought him to a CVS pharmacy in Juno Beach. There, Detective Keith sought the brother's prescription history. The pharmacist helpfully pointed out that the brother had a twin, Sun, and gave Detective Keith patient profiles for both men. Visiting several other area pharmacies, Detective Keith obtained Sun's patient profile from each, all without a [search] warrant or a subpoena.

          The investigation shifted into its next phase. Detective Keith compared all of Sun's patient profiles to determine whether Sun had gotten the same or similar medications from two or more physicians within a thirty-day period. Sun had. Detective Keith proceeded to contact the three prescribing physicians. He asked each if they had a patient in their care with Sun's name and birth date, and each said yes. When asked, each doctor denied knowing Sun had been seeing other doctors who had been giving him the same or similar prescriptions. They provided written statements to that effect and handed over Sun's signed patient contracts. In his [report], Detective Keith noted '[the doctors] did not disclose the nature of any of Sun's underlying health condition(s) that [necessitated] issuance of the prescriptions.'  As with the pharmacy records, Detective Keith had neither a warrant nor a subpoena for these items."

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