APPEALS FOR THE WEEK OF JULY 18th, 2011

The Florida Supreme Court will be in summer recess until August 15, 2011. Release of regular opinions will resume August 25. Bar discipline and case disposition orders may be released in the interim..

In HAAG v. STATE, No. 2D09-5934 (Fla. 2d DCA Jul. 15, 2011), the court held that double jeopardy precluded the Defendant from being convicted for both leaving the scene of a crash involving injury under § 316.027 Florida Statutes (2007) and for vehicular homicide/leaving the scene under § 782.071(1)(b) Florida Statutes (2007), where the same crash resulted in the death of one person and injuries to two other individuals.

In ODEH v. STATE, No. 4D09-994 (Fla. 4th DCA July 13, 2011), the Defendant was a store clerk who shot a customer. The Defendant asserted a defense of self-defense. During police interrogation, a law enforcement officer opined to the Defendant regarding the Defendant's claim of self-defense. A recording of the interrogation was played at trial; the Defendant did not requiest redaction of the recording or object to the opinion of the officer.

The DCA held that a witness' opinion as to the guilt or innocence of the accused is not admissible in evidence. Florida statutory law excludes such opinion testimony, regardless of its relevance, because it is more prejudicial than probative; the danger of prejudice increases when an investigating officer is permitted to offer an opinion as to the defendant's guilt. An officer's opinion regarding a legal defense raised by an accused is tantamount to an opinion as to the guilt or innocence of the accused. "Law enforcement officers have never been considered to be legal experts in a court proceeding. However, a juror may reasonably assume an officer has some training in criminal law and therefore can properly opine as to the legal merits of a defense to a crime. Allowing an improper opinion by a law enforcement officer on a matter of law encourages an improper assumption on the part of the jury that the officer's opinion is legally correct. While it is safe to assume that jurors can recognize as an interrogation technique that an investigating officer may offer an opinion about facts during an interrogation to elicit a response from a criminal suspect, it is not safe to assume that jurors can recognize as an interrogation technique that an investigating officer may offer an opinion about the law during interrogation to elicit a response from a criminal suspect." Slip opinion at 8. However, absent an objection, the court held that here the error was not fundamental.

In GUINAN v. STATE, No. 4D09-1261 (Fla. 4th DCA Jul. 13, 2011), the Defendant was a preacher who was charged with grand theft for using church funds for his own benefit. At trial he moved for a JOA based on lack of evidence of intent. The DCA held that direct evidence of intent is rare; intent must usually be proven through the surrounding circumstances. Where the state relies on circumstantial evidence to prove intent, the evidence must be inconsistent with innocence.
However, the state need not conclusively rebut every possible variation of events which can be inferred. The absence of direct proof on the question of the defendant's mental intent should rarely, if ever, result in a judgment of acquittal.

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