In DEPIERRE v. UNITED STATES, No. 09-1533 (Jun. 9, 2011), the U.S. Supreme Court held that for the purpose of 21 U.S.C. § 841(b)(1), which established certain minimum mandatory sentences for certain offenses involving "cocaine base", the term "cocaine base" includes all cocaine in its chemically basic form, and is not limited to crack cocaine. In a unanimous opinion the Court held that "the term 'cocaine base' is more plausibly read to mean the 'chemically basic form of cocaine... than it is 'crack cocaine.'" Slip opinion at 8. Crack, freebase, and coca paste are all chemically basic forms of cocaine; cocaine hydrochloride (powder cocaine) is a non-basic form. Slip opinion at 3.
In CORONA v. STATE, No. SC06-1054 (Fla. Jun. 9, 2011), the Florida Supreme Court held that a discovery deposition does not satisfy the United States Supreme Court's mandate concerning a defendant‟s Sixth Amendment right to confrontation as outlined in Crawford v. Washington, 541 U.S. 36 (Fla. 2004). A defendant must be given a prior opportunity to cross-examine a declarant of a testimonial statement; a discovery deposition is not the equivalent of a prior opportunity for cross-examination. The Court rejected a ruling by the Fifth District Court of Appeal, which held that a discovery deposition in this case fulfilled the Defendant's prior opportunity to cross-examine the witness.
The Court reasoned that in the Crawford Court held that a hearsay statement offered against the defendant violates this constitutional right if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination. 541 U.S. at 68. In setting out what is constitutionally required, the Court receded from its prior decision in Ohio v. Roberts, 448 U.S. 56 (1980), which held that hearsay statements should be excluded absent a "showing of particularized guarantees of trustworthiness" and were admissible under the Sixth Amendment if they carried "adequate 'indicia of reliability.'" Id. at 66. The Crawford Court held that for testimonial statements, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U.S. at 69. In a subsequent opinion, the Court observed that "[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington, 547 U.S.
813, 821 (2006). Slip opinion at 12-13. Here the Florida Supreme Court held that Fla. R. Crim. P. 3.220(h), which permits discovery depositions, "was not designed as an opportunity to engage in adversarial testing of the evidence against the defendant, nor is the rule customarily used for the purpose of cross examination. Instead, the rule is used to learn what the testimony will be and attempt to limit it or to uncover other evidence and witnesses. A defendant cannot be 'expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.' This is especially true if the defendant is 'unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent‟s statements.' [Moreover], a discovery deposition is not intended as an opportunity to perpetuate testimony for use at trial, is not admissible as substantive evidence at trial, and is only admissible for purposes of impeachment. [Finally], the defendant is not entitled to be present during a discovery deposition pursuant to rule 3.220(h). Thus, the exercise of the right to take a discovery deposition under rule 3.220 does not serve as the functional substitute for in-court confrontation of the witness." Blanton v. State, 978 So. 2d 149, 155 (Fla. 2008), quoting State v. Basiliere, 353 So. 2d 820, 824-25 (Fla. 1977). Slip opinion at 16.
In DHSMV v. HERNANDEZ, No. SC08-2330 (Fla. Jun. 9, 2011), the Court held that a suspension of a driver's license pursuant to § 322.2615 Florida Statutes can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. The driver whose license is suspended must be able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the DHSMV hearing officer who is reviewing the legality of the suspension.
In SMITH v. STATE, No. 2D10-10 (Fla. 2d DCA Jun. 10, 2011), the DCA held that the trial court considered several impermissible factors when sentencing the Defendant for felony DWLS. The DCA held that it is impermissible for a trial court to consider a defendant's assertions of his innocence and refusal to admit guilt in imposing sentence. It is also improper for the court to consider the truthfulness of a defendant's testimony when imposing sentence. In this case the trial court improperly considered those factors, noting that the Defendant refused to admit to prior crimes and had not accepted responsibility for anything. The trial court commented that he was "not real convinced" of the story that the Defendant and a defense witness presented in their testimony. Because the trial court expressly considered improper factors in sentencing, the DCA held that the Defendant was denied due process and the trial court committed fundamental error. Accordingly, the DCA reversed the sentence and remanded the case for sentencing before a different judge.
In L.A.P. v. STATE, No. 2D09-5832 (Fla. 2d DCA Jun. 10, 2011), the court held that § 384.24(2) Florida Statutes (2008) makes it a third-degree felony for any person with knowledge that she is infected with HIV to have sexual intercourse with another person without informing the other person of her status as HIV positive. Here the Defendant appealed denial of her dispositive motion to dismiss the charge on the basis that the Defendant's actions - engaging in oral sex and digital penetration of the vagina without informing her partner of her HIV positive status - violated § 384.24(2). The DCA held that because § 384.24(2) requires sexual intercourse the statute does not apply to the Defendant's actions and reversed her conviction. [Editor's note: The court's comments on the proper analysis of the statute are worth reading and saving for future reference.]
In A.S. v. STATE, No. 2D09-5118 (Fla. 2d DCA Jun. 10, 2011), the court reviewed application of Fla. R. Juv. P. 8.165, which addresses waiver of counsel in juvenile proceedings. The DCA held that to determine whether a juvenile's waiver of counsel is knowing and intelligent, the trial court must (1) inform the juvenile of the disadvantages and dangers of self-representation and the benefits she would relinquish, (2) determine whether she is choosing voluntarily and intelligently to waive the assistance of counsel, and (3) determine whether any unusual circumstances preclude the juvenile from exercising her right to represent herself. Here failure to comply with rule 8.165 at a plea hearing constituted fundamental error.
In BARRIOS-CRUZ v. STATE, No. 2D10-4774 (Fla. 2d DCA Jun. 10, 2011), long after the time provided by rule, the Defendant filed motions for post-conviction relief based on retroactive application of the rule in Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), which creates a duty on behalf of counsel to advise their noncitizen clients that their criminal charges may subject them to adverse immigration consequences. The DCA held that Padilla should not be applied retroactively in postconviction proceedings. However the court certified the question as one of great public importance to the Florida Supreme Court, recognizing that courts are split on this issue.
In PARRISH v. PRICE, No. 2D10-3484 (Fla. 2d DCA Jun. 10, 2011) the DCA held that although § 741.30 Florida Statutes (2010) does not specifically provide for a parent to seek an injunction on behalf of a minor child, the same clearly contemplates that children are among those who may invoke the statute's protection from domestic violence. Fla. R. Civ. P. 1.210(b), applicable to all civil cases, provides that a minor cannot sue on his or her own behalf. Rather, suit must be instituted by an appointed representative or a "next friend," such as a parent. Thus, a child's only vehicle for seeking protection under the domestic violence statute is through a petition filed by a next friend or representative. Therefore a parent had standing to seek domestic violence injunctions on behalf of the minor children.
In ALLEN v. STATE, No. 4D09-2618 (Fla. 4th DCA Jun. 8, 2011), the DCA held that DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population. Both steps require use of scientific methods that must satisfy the test in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In this case the state's expert witness never testified (either during voir dire examination or during her direct examination) as to the database or methodology she used to calculate the statistical significance of the Defendant's DNA profile matching that of samples taken from the crime scene. Defense counsel properly objected on the grounds that the witness had not been qualified as an expert in statistical probability. It was the state's burden to prove that the expert was qualified, and not the Defendant's burden to show that she was not.
The DCA held that the record did not reveal the statistical methodology used to calculate the DNA population frequencies in this case, or the expert's qualifications to present that evidence. Therefore the DCA reversed the conviction and sentence, and remand the case to the trial court for a limited evidentiary hearing for the trial court is to (1) assess the expert witness' competence to present the statistical evidence; and (2) clarify the exact methodology and database used for her calculations.
