In SABINE v. STATE No. 2D04-5378 (Fla. 2d DCA Apr. 27, 2011), the Defendant was charged with four counts of capital sexual battery on a person under the age of twelve and sixteen counts of lewd and lascivious battery. The court held that errors in jury selection and in admitting the collateral crime evidence require reversal.
The Defendant's trial counsel made a timely objection to the State's peremptory challenge to a potential juror, argued that the potential juror was a man, claimed that the State was discriminatorily removing men from the panel, and requested a gender-neutral reason for the strike. The DCA held that objection to be sufficient for the trial court to require the State to provide a gender-neutral reason for the strike. The DCA applied to gender based challenges the guidelines for resolving claims of discriminatory peremptory challenges based on race in Melbourne v. State, 679 So. 2d 759 (Fla. 1996): "A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike." Melbourne at 764 (footnotes omitted).
The Defendant was charged by information with twenty discrete instances of sexual misconduct with the victim. The State moved to admit "inextricably intertwined" evidence of collateral crimes, which the trial court granted. The DCA reversed, and explained that the collateral evidence "was unnecessary to describe the charged acts, provide an intelligent account of the charged crimes, establish the context of the charged offenses, or describe the events leading up to the offenses.... The victim testified how [the Defendant] sexually battered and molested her during the four-year charged time period. No explanation of prior or subsequent conduct was necessary for the jury to understand the evidence of the twenty discrete acts charged in the information.... when there is a clear break between the prior conduct and the charged conduct or it is not necessary to describe the charged conduct by describing the prior conduct, evidence of the prior conduct is not admissible on this theory."
The DCA also rejected the State's argument that affirmance would still be proper because the evidence was admissible as similar fact evidence pursuant to § 90.404(2)(b)(1) Florida Statutes (2004), which provides that "[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." The DCA held that to introduce evidence of uncharged crimes of child molestation under § 90.404(2)(b)(1), the State must (1) furnish to the defendant or to the defendant's counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information and (2) the trial court must find that the prior acts were proved by clear and convincing evidence and must assess whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice. Here, the State's motion did not contain dates, locations, or details of the uncharged sexual conduct that it sought to introduce. Therefore it was not sufficiently particular to satisfy the § 90.404 notice requirement. In addition the trial court did not make any of the necessary findings.
In BUTERA v. STATE, No. 2D09-4401 (Fla. 2d DCA Apr. 27, 2011), the Defendant was the sole backseat passenger of a vehicle that was stopped for a traffic violation. A detective found contraband in a compartment on the back of the passenger-side front seat when he pulled the compartment forward. The Defendant had been sitting directly behind the passenger-side front seat when the vehicle was stopped. The detective testified that the main reason he arrested the Defendant and not the other occupants was the proximity of the contraband in relation to where the Defendant had been sitting. The Defendant was accused of violating his probation predicated upon his commission of two offenses: possession of cocaine and possession of cannabis.
The DCA held that a trial court may revoke a defendant's probation if the probationer's criminal activity is shown by the greater weight of the evidence. Because the cocaine and cannabis were not found on the Defendant's person or in his exclusive possession, the evidence had to establish constructive possession. Generally, in order to establish constructive possession of a controlled substance at the time these alleged violations occurred, the evidence had to demonstrate (1) that the defendant knew of the presence of the contraband and (2) that he or she had the ability to maintain dominion and control over the controlled substance. Here the State presented evidence of the Defendant's
proximity to the contraband. However, even in the context of a probation revocation proceeding, a defendant's knowledge of the presence of contraband and ability to control it cannot be inferred from the defendant's proximity if the contraband is found in a location that is in joint, rather than exclusive, possession of the defendant. These elements must be established by independent proof, albeit only by a mere preponderance of the evidence. The evidence was not sufficient to establish the Defendant's knowledge of or his dominion and control over the contraband found in the vehicle.
In MILLS v. STATE, No. 2D10-864 (Fla. 2d DCA 27 May, 2011), two police officers were patrolling an area which they considered to be a high crime area and which had been recently hit with a series of "smash-and-grab" burglaries. They saw the Defendant walking out from behind a closed business complex. The officers circled around the block, and the Defendant turned to walk back the way from which he had come. Because the behavior had drawn their attention, the officers pulled behind the business complex. There, they observed the Defendant standing in a dark area "up against the building, behind a tree in... some overgrowth." The officers put a spotlight on him, and he walked toward them. When they asked the Defendant what he was doing, he stated that he had walked behind the business because he had gotten nervous when he saw the police cruiser. He told the officers his name. The officers arrested the Defendant for loitering and prowling. When they searched him, they discovered contraband.
The elements of loitering and prowling are first "the accused must loiter or prowl in a manner not usual for a law-abiding citizen. This conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent. That requires more than a vaguely suspicious presence. A defendant's response to the police pursuit cannot be used retroactively to support an imminent suspicion of criminal activity.
The second element requires the factual circumstances to establish that the accused's behavior is alarming in nature, creating an imminent threat to public safety. In this context, drug possession does not pose a threat to persons or property. Both elements of the offense of loitering and prowling must occur in the officer's presence and must be completed before the officer takes action.
The DCA held that the officers in this case did not have probable cause to arrest the Defendant for loitering and prowling. Because they did not observe him committing both elements of the crime, they could not provide an objective, articulable justification for arresting him. The DCA explained that the officers arrested the Defendant based on "pure speculation." The Defendant was at most a vaguely suspicious presence.
While he was in a high crime area that had been hit with a series of "smash-and-grab" burglaries, there had been no report of a burglary in the area at the time the officers encountered him. The Defendant's conduct of walking out from behind a closed business, turning around when he saw the officers, and walking back behind the closed business did not come close to the actual commission or attempted commission of a substantive crime. Nor did it suggest that a breach of the peace was imminent. Additionally, the Defendant's behavior did not raise alarm or suggest an imminent breach of the peace or threat to persons or property.
In NIEMINSKI v. STATE, No. 2D10-1087 (Fla. 2d DCA Apr. 29, 2011), the DCA held that a law enforcement officer may open a closed, but unlocked, driveway gate on a rural or suburban acreage that is completely surrounded by a chain-link fence in order to walk to the front door of a house to engage in a knock and talk. At least in the absence of a "no trespassing" sign or similar warning that the fence and gate are intended to keep people out rather than to keep animals in, an officer may enter the curtilage for that limited purpose.
In STATE v. CADORE, No. 2D10-1052 (Fla. 2d DCA Apr. 27, 2011), the court held that a question of constructive possession can not be determined in the context of a motion to dismiss under Fla. R. Crim. P. 3.190(c)(4) where the State's case is based on circumstantial evidence and evidence taken in the light most favorable to the State could make out a prima facie case of constructive possession.
In EDWARDS v. STATE, No. 2D09-2399 (Fla. 2d DCA Apr. 29, 2011), the Defendant was accused of violating a condition of his probation for failing to abide by the terms of his electronic monitoring on two occasions. Both of these violations were grounded on the "bracelet gone" alerts, but the only evidence of the alerts was hearsay. No one from the DOC monitoring contractor established that the alerts occurred or was present to authenticate the report as a business record. Although hearsay evidence, such as the monitoring company's report, is admissible at a probation revocation hearing, such evidence may not form the sole basis of a decision to revoke.
In NATAN v. STATE, No. 2D08-5667 (Fla. 2d DCA Apr. 27, 2011), the court applied the "per se reversible error rule" when a bailiff had unsupervised communications with a jury. The bailiff had reportedly had a conversation with jurors about labels on evidence which had been provided to the jury during deliberations.
