In CALDWELL v. STATE, No. 2D09-1734 (Fla. 2d DCA Jan. 14, 2011), the trial court denied the Defendant's cause challenge to a potential juror, who questioned why a person would not want to testify in his defense.
Even after defense counsel informed the potential jurors that a defendant has an absolute right to not testify, the challenged juror stated that she did not understand why somebody would not want the opportunity to speak the truth. When asked by defense counsel why someone might not want to testify, the challenged juror stated "[u]nless they are guilty." The DCA held that the challenged juror's comments created a reasonable doubt regarding her ability to be fair and impartial. Therefore the trial court abused its discretion in denying the Defendant's challenge for cause to the challenged juror. The DCA reasoned that when sufficient grounds arose to sustain the challenge for cause as to the challenged juror, it was not defense counsel's obligation to rehabilitate her. She was not asked by the trial court or the prosecutor if she understood the right to remain silent or if she could be impartial and fair despite her earlier comments regarding the right to remain silent.
The DCA succinctly restated the rule for preservation for appeal of a challenge to a juror: "in order to show that the improper denial of a challenge for cause constitutes reversible error, the challenging party must use a peremptory challenge to strike the juror, request additional peremptory strikes, and demonstrate that an objectionable juror served on the jury", quoting Carratelli v. State, 961 So. 2d 312, 318-19 (Fla.2007).
In STATE v. HERC, No. 2D09-4516 (Fla. 2d DCA Jan. 14, 2011), a detective was investigating trafficking in illegal drugs and obtaining drugs from a physician by withholding information. The detective testified that he requested and received the Defendant's pharmacy records. The detective then contacted the prescribing physicians' offices and asked them if they were aware that the defendant was seeing another doctor for a prescription of a controlled medication. If the answer was no, the detective would ask, "Well, knowing that they've seen one, would you have continued to prescribe them medications?" The DCA held that law enforcement officers may obtain controlled substance records of pharmacies without notifying the patient or obtaining a warrant. However the DCA observed that the trial court did not address whether the detective's testimony involved medical records as defined in § 456.057(6) Florida Statutes (2008). The DCA remanded the case to the trial court for that determination. [Ordinarily a subpoena and proper notice to the patient or the patient's legal representative would be required by a party seeking medical records without the permission of the patient. See § 456.057(7). Ed.]
In M.W. v. STATE, No. 2D10-2395 (Fla. 2d DCA Jan 14. 2011), the juvenile Defendant was arrested at school without a warrant for an alleged assault on a school employee. He was alleged to have obstructed an officer without violence at the time his warrantless arrest for the assault, which was a misdemeanor committed outside the presence of the arresting officer. The DCA held that because a warrantless arrest for the kind of assault at issue in this case is lawful only if the offense is committed in the officer's presence, the officer was not engaged in the execution of a legal duty during the arrest of the Defendant. Therefore the Defendant could properly obstruct or oppose the illegal arrest without violence. Therefore the circuit court erred in finding that the Defendant committed the delinquent act of obstructing or opposing an officer without violence.
In PENN v. STATE, No. 2D07-4907 (Fla. 2d DCA Jan. 14, 2011), the trial court did not conduct the preliminary inquiry required by the rule in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), after being advised by the Defendant's counsel that the Defendant wanted to discharge her lawyer. The DCA reversed the conviction and remanded the case for a new trial. The DCA reasoned that the Defendant did not make any allegations; her attorney stated to the trial court that the Defendant wanted him removed from the case. It was not the trial attorney's responsibility to explain the reasons or details of his client's dissatisfaction. An attorney in this context essentially has a built-in conflict. It was the attorney's responsibility to inform the court of the client's discontent and allow the trial court to take the next step of allowing the client to explain the perceived problems. In this case, the Defendant never made an oral motion to discharge her attorney because the trial court would not hear from her and gave her no opportunity to make a motion or state her complaint.
In ORTIZ v. STATE, No. 2D09-4649 (Fla. 2d DCA Jan. 14, 2011), on the court's own motion for rehearing, the DCA held that a single misstatement about the time a probationer left work did not amount to a substantial violation of probation.
In LAMB v. STATE, by order entered 12 January 2011 on its own motion, the DCA withdrew its opinion in LAMB v. STATE, No. 2D09-5130 (Fla. 2d DCA Dec. 22, 2010), which was addressed in this publication 27 December 2010. Presumably an explanation will follow.
In M.N. v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, No. 2D10-2086 (Fla. 2d DCA Jan. 14, 2011), a case of the first impression, the DCA considered a termination of parental rights. The court held that a requirement in a case plan "that a parent commit no new law violations or that the parent comply with the terms and conditions of probation or community control may not properly be included as a case plan task. The breach of such a task that results in the parent's incarceration is not - standing alone - a proper ground for the termination of parental rights." Slip opinion at 14-15. The court reasoned that § 39.806 Florida Statutes (2008) "establishes multiple grounds for the termination of parental rights based either on the parent's status as a recidivist or a sexual predator, or on the parent's commission of certain specifically designated crimes. So a proper interpretation of the statute cannot authorize its expansion to include all criminal conduct as a ground for the termination of parental rights." Slip opinion at 16.
In RUIZ v. STATE, No. 4D09-1544 (Fla. 4th DCA Jan. 12, 2011), the district court reviewed denial of the Defendant's motion to suppress the results of the search of his apartment. The DCA made the following observations about the facts:
"On the pages of the record, the story told by the police is unbelievable - an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is 'nonchalantly' and 'casually' approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment." Slip opinion at 5-6.
The district court made the following observations about the law:
"Over time, the concept of 'consent' to a search has become divorced from its common meaning. In the Fourth Amendment context, 'consent' has come to mean that set of circumstances that the law will tolerate as an exception to the probable cause or warrant requirement. What passes for 'consent' today would not have survived a motion to suppress 25 years ago. Now, even aggressive conduct by the police will not necessarily vitiate 'consent' when viewed as a part of the 'totality of the circumstances.'
"The 'totality of the circumstances' approach has expanded the concept of 'consent' in a way that has had a significant effect on the administration of criminal justice. It allows a trial court to rely on other factors that swallow aggressive police conduct and contract the limits of Fourth Amendment protection.
"In many cases, the police rely upon a defendant's voluntary consent to justify a search or a stop. One possibility is that citizens, especially those involved in crimes, have a desire to cooperate with the police to avoid making waves. Another possibility, far more sinister, is that the police have come to recognize that 'consent' is the catch-all exception to the Fourth Amendment, so they tailor their testimony accordingly." Slip opinion at 3-4.
Nevertheless, citing the rule that an appellate court defers to the factual findings of the trial court, the DCA affirmed denial of the Defendant's motion to suppress the results of the search of his apartment. One hopes that the Emperor was well dressed for "high season" in Palm Beach last week.
