In SKINNER v. SWITZER, No. 09-9000 (Mar. 7, 2011), the U.S. Supreme Court held that a convicted state prisoner seeking DNA testing of crime-scene evidence is not limited to assert a federal claim in a petition for a writ of habeas corpus under 28 U.S.C. § 2254, but may also assert that claim in a civil rights action under 42 U.S.C. § 1983.
The Florida Supreme Court issued no opinions this week. The Second District Court of Appeal issued only three opinions, none in criminal cases. One Second DCA opinion, SANDORO v. HSBC BANK, No. 2D10-195 (Fla.
2d DCA Mar. 9, 2011) served to illustrate how badly some trial courts have misstepped in addressing real property foreclosures.
In GONZALEZ v. STATE, No. 4D09-3648 (Fla. 4th DCA, 2011), a police officer testified that he had been observing the Defendant's residence based on a tip involving drug activity. He saw the Defendant standing outside the front door; as the officer approached he smelled marijuana.
He handcuffed the Defendant and "placed him on the ground." Slip opinion at 1. The officer testified that the Defendant then gave consent for the officer to enter and search the residence. The Defendant testified the officer threatened him with a gun, and said if he did not consent he would get a search warrant, and threatened to arrest his girlfriend. The girlfriend corroborated the Defendant's testimony, but she said she did not hear the Defendant give permission to search or see the police enter the house.
The DCA correctly recognized that where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. Further, where there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action. Otherwise, the voluntariness of the consent must be established by a preponderance of the evidence.
Here the DCA held that handcuffing the Defendant and securing him on the ground did not constitute unreasonable or unlawful conduct on the part of the police because the officer testified that he smelled the odor of marijuana emitting from the house when he first approached the defendant outside his house. Other than the Defendant's being handcuffed on the ground during a lawful detention, there were no other coercive circumstances which affected the defendant's ability to give free and voluntary consent. Therefore "even though the state has a heavy burden to overcome in establishing the voluntariness of consent when a defendant is handcuffed, the record in this case reflects that the state met its burden." Slip opinion at 6.
In STATE v. PEREZ, No. 5D10-1299 (Fla. 5th DCA Mar. 4, 2011), a police officer was investigating a report that the Defendant had committed a sexual assault on an under-age girl. He went to the Defendant's residence and questioned him without the benefit of the warnings required by Miranda v. Arizona, 348 U.S. 436 (1966). The questioning took place in the presence of the Defendant's mother; the officer told them that he was investigating a sex act by a different person with a different victim. Both the Defendant and his mother knew that the other person had been arrested for having sex with an underage female in their home. The mother believed that the officer was there to discuss the other person's involvement in a sexual assault, rather than any involvement on the part of her son. When the officer asked her to leave the room because they were going to discuss sexual issues, a topic he asserted some people are uncomfortable talking about in front of their mothers, she agreed and left. Ultimately, the Defendant admitted having sex with the victim. The DCA applied the rule in Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999), to hold that a reasonable person in the Defendant's situation would not have believed himself to be in custody.
Therefore his confession should not be suppressed. [Editor's note:
although not addressed by the DCA in this case, under most circumstances police deception does not invalidate a confession or consent to search.
See, e.g., Colorado v. Connelly, 479 U.S. 157, 164 n.2 (1986); Wyche v.
State, 987 So. 2d 23 (Fla. 2008), certiorari denied, 129 S.Ct. 732 (2008); Miami-Dade Police Department v. Martinez, 838 So. 2d 672 (Fla.
3d DCA).]
In MOORE v. STATE, No. 3D09-958 (Fla. 3rd DCA Mar. 9, 2011), the Defendant was convicted of second degree murder. Testimony at trial evinced that the Defendant told another person that he had killed a "faggot". The trial court entered an order in limine preventing argument that there had been sexual contact between the defendant and victim. Nevertheless the DCA held that the prosecutor's argument that the victim was gay was permissible because the "prosecutor's statement was made in support of the State's theory that the victim was killed because of his sexual orientation, and that the defendant acted with malice." Slip opinion at 8.
The jury was instructed on both manslaughter by culpable negligence and manslaughter by act as lesser included offenses of second degree murder.
An erroneous manslaughter instruction was given without objection.
The DCA held that because both instructions were given, the error in giving the flawed manslaughter by act instruction is not fundamental.
In DEES v. STATE, No. 1D09-5638 (Fla. 1st DCA Mar. 2, 2011), the court held that the Defendant could not properly be convicted of driving while license revoked as a habitual traffic offender in violation of §
322.34(5) Florida Statutes (2009), driving while license suspended, revoked or canceled with knowledge, in violation of section 322.34(2)(c) Florida Statutes (2009) and driving without a valid license in violation of section 322.03(1), Florida Statutes (2009) when the three violations arose out of the same offense.
In CRUM v. STATE, No. 4D09-3077 (Fla. 4th DCA Mar. 9, 2011), the DCA held that carrying a concealed weapon is not a lesser included offense of carrying a concealed firearm. In § 790.001 Florida Statutes the legislature could not have intended for a gun to be a "firearm" when not concealed, but to be both a "weapon" and a "firearm" when concealed.
