In STATE v. VENEGAS, No. 2D10-5196 (Fla. 2d DCA Feb. 17, 2012), the Defendant was employed as a construction worker. After an incident at a job site, a stabbing victim was transferred to a hospital, where he later died. Sheriff's detectives made contact with the Defendant, who agreed to go with his wife to a police substation for questioning. It was understood that the defendant was being detained at the substation and was not free to leave at the time of the interrogation. At the outset of the taped interview, a detective read the warning required by Miranda v. Arizona, 384 U.S. 436 (1966), to the Defendant, who indicated that he understood his rights. The detectives explained that they were trying to decipher the circumstances of the stabbing in order to determine whether it was a premeditated act or the result of a heated confrontation. One of the detectives asked, "Do you want to talk to us now without a lawyer present?" The Defendant responded, "No, because there is someone dead." The detectives continued to question the defendant, who told them that he put the knife in a bathroom because he "got scared when this happened." Based on that information, the detective went to the portable toilet on the construction site and located the knife.
The trial court held that the Defendant made an unequivocal request for an attorney and that the detectives failed to immediately cease questioning him after he asserted his rights to have his attorney present during the questioning. Therefore the trial court ruled that all the statements made by the Defendant subsequent to his invoking his right to counsel must be suppressed. The DCA affirmed that ruling of the trial court. However the trial court denied the Defendant's motion to suppress the actual knife. The DCA reversed, holding that once the Defendant stated that he wanted to speak with an attorney, the officers should have terminated their questioning until either the Defendant consulted with his attorney or he initiated further conversation; any questioning after that point amounted to unlawful interrogation. The DCA held that to exclude only the statement and not the knife in this case would not only reward the police for intentionally violating the Defendant's right to counsel but would also encourage future such violations by suggesting that even if any incriminating statements have to be excluded, the State still could benefit from any incriminating "nontestimonial" evidence it might be able to obtain.
In M.A.F. v. STATE, No. 2D10-5196 (Fla. 2d DCA Feb. 17, 2012), a sheriff’s deputy stopped the juvenile Defendant outside a movie theater because he saw the Defendant smoking a cigar. The deputy asked the Defendant for identification with the intention of giving him a citation for underage possession of tobacco products. Upon checking the Defendant's record, the deputy found an outstanding juvenile pick-up order. He searched and handcuffed the Defendant and put him in the back seat of his patrol car. The deputy also took custody of the backpack the Defendant was carrying and searched it but found no contraband. He placed the backpack in the front seat of the car. On the way to the jail, the deputy warned the Defendant that if he was carrying any drugs he should reveal them because he could be charged with introducing contraband into a county jail. The Defendant said he had no drugs. At the jail, a different deputy took custody of the Defendant and the backpack. Shortly thereafter, that deputy found a small amount of marijuana concealed in a pocket of the backpack. The Defendant was charged with introducing contraband into a detention facility.
The trial court held that the Defendant was aware that the contraband was coming in, even though through the assistance of the sheriff's office in carrying the backpack for him, and he did not take steps to insure that contraband did not come into the correctional facility as a result of it being in his backpack. The DCA reversed, reasoning that the trial court essentially found that the Defendant was in constructive possession of the marijuana when entering the jail. Constructive possession exists when the accused, without physical possession of the controlled substance, knows of its presence and has the ability to maintain control over it. The DCA held that while the Defendant's awareness that his backpack was coming into the facility tended to prove the element of knowledge of the presence of contraband, it did not establish that he had the ability to maintain control of it. Once the deputy placed the Defendant in the patrol car, the Defendant was separated by a glass window from the backpack on the front seat and he did not have access to the bag again.
In FERGIEN v. STATE, No. 2D10-1564 (Fla. 2d DCA Feb. 17, 2012), the DCA held that in a criminal case, motions for judgment of acquittal and for new trial are decided under different tests. Compare Fla. R. Crim. P. 3.380(a) (directing judgment of acquittal when trial court "is of the opinion that the evidence is insufficient to warrant a conviction"), with Fla. R. Crim. P. 3.600(a)(2) (directing new trial when "verdict is contrary to... the weight of the evidence"). On the one hand, a motion for judgment of acquittal tests the sufficiency of the evidence; a trial court must determine whether the evidence presented is legally adequate to permit a verdict. On the other hand, a motion for new trial tests the weight of the evidence; a trial court must weigh the evidence and determine credibility just as a juror is required to do.
In DERAVIL v. STATE, no. 2D11-2236 (Fla. 2d DCA Feb. 15, 2012), the Defendant was charged with attempted first-degree premeditated murder and was convicted of the category one lesser-included offense of attempted second-degree murder with a weapon. The jury was also instructed on attempted manslaughter by act, which is also a category one lesser-included offense of attempted first-degree premeditated murder. The trial court gave a standard instruction on attempted voluntary manslaughter. That instruction was fundamentally erroneous because it imposed an additional element of intent to kill. The DCA held that appellate counsel rendered ineffective assistance in failing to argue that the attempted manslaughter by act instruction constituted fundamental error. The DCA concluded that a new appeal would be redundant, and therefore reversed the conviction for attempted second-degree murder with a weapon, vacated the sentence, and remanded the case for a new trial.
