JURY INSTRUCTIONS – LEWD AND LASCIVIOUS, SIMPLE BATTERY AS LESSER:  Khianthalat v. State, 33 Fla. L. weekly S44 (Fla. Jan. 18, 2008).  Defendant is charged with L & L and requests simple battery as a permissive lesser included offense.  The problem is “without the victims consent” is not alleged in the information and there was no testimony that the sexual conduct was not consensual.  Defense argued that “lack of consent” is presumed in cases involving minor victims; therefore, “lack of consent” need not be alleged.  The court found that when the child is older than 12, a victim can consent and that the section 800.04(4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual.

PRISON RELEASEE REOFENDER – FELONY BATTERY:  Johns v. State, 33 Fla. L. Weekly D181 (Fla. 1st DCA Jan. 18, 2008).  The Florida Supreme Court held that battery on a law enforcement officer can not be reclassified as a forcible felony.  The rational is that if a person lightly pushes a police officer, this is technically a batt. Leo., but certainly is not a crime involving violence.  This case holds that the same rational applies to a battery enhanced to a felony because of prior convictions for simple battery.

BATTERY ON A POLICE OFFICER – COMMENT ON DEFENDANT’S FAILURE TO CALL A WITNESS – EXCLUSION OF A RACIAL SLUR ON CROSS – HEARSAY:  Love v. State, 33 Fla. L. Weekly D195 (Fla. 4th DCA Jan. 18, 2008).  Love is an activist is Pahokee who would attend town meetings and openly criticize local law enforcement.  The Pahokee police did not love Love, to say the least.  One night, a police officer stopped Love for driving without headlights and during the stop, the officer learned that Love’s license was suspended.  The police testified that Love resisted and the force they used was justified.  The police also found a misdemeanor amount of pot in Love’s car.  Love testified that without provocation the police began to beat him.  Love called a witness, a woman who was leaving church and saw the incident, who testified that the police beat Love for no reason.  The first paragraph of the opinion is worth mentioning:

Many criminal trials are like boxing matches, where the state and defense trade punches within defined rules of engagement.  This case resembled an ultimate fighting video game, without rules, where the goal of each side was to win at any cost.” 

You know the State really wanted a conviction because they did DNA analysis on the baggie of marijuana, which matched Love’s DNA.

First error:  Improper for state to question the church lady about how many other people were outside the church and why were they not called to corroborate her testimony.  This is a classic example of the State shifting the burden in a criminal trial.  Love did not assert an affirmative defense or establish that the witness had a “special relationship” with the witness.

Second error:   Love wanted to call a former member of the Pahokee police department who had supervised one of the officers, Peters, to testify that in the past Peters and Love got into a heated discussion during which Peters referred to Love as the “n” word.  The court would not allow it because it was too prejudicial and would become the feature of the trial.  The court held that Peters’ racial slur was admissible to show his bias as a witness.

Third error:  One officer testified that an unidentified party told another officer that Love boasted about wanting to kill and injure officers.  The court held that if Love made such a statement to another officer, it would be admissible as an admission if that officer testified.  Because this was double hearsay and the second hearsay did not fall under any exception, the statement was inadmissible.  Also, the statement could not be used to show the reasons why the officers acted the way they did.  Any minimal relevance would be outweighed by unfair prejudice.

Last, the court committed fundamental error when it lumped two officers together with and and/or connector in the jury instructions.  The state charged Love with two counts of batt. LEO.   Lumping the two officers together in the instruction could allow two convictions even though the jury found that Love had committed only one crime.

YOUTHFUL OFFENDER:  Rogers v. State, 33 Fla. L. Weekly D197 (Fla. 4th DCA Jan. 18, 2008).  Backman case.  The state initially charged Rogers with various 2d and 3d degree felonies.  He was sentenced to a YO sentence.  He violated his probation with a new substantive offense.  Backman revoked Rogers’ YO status and sentenced Rogers to concurrent 15 year terms for the second degree felonies and 9.7 for the 3d degree felonies, based on the lowest score permissible on the guidelines.  The court first held that Backman could not revoke Rodgers’ YO status unless there is a conviction on the new substantive offense.  The 15 year sentence is legal because there was a substantive offense alleged in the VOP warrant, but the revocation of the YO status was improper. (I don’t know if that would make a difference once Rogers is in the custody of DOC.)  Also, Rogers 5 years FSP would be the maximum for the 3d degree felonies based on the YO statue that says if an offender violates probation, he or she can be sentenced up to the statutory maximum.

STATEMENT – CONFESSION:  State v. Davis, 33 Fla. L. Weekly D204 (Fla. 1st DCA Jan. 18, 2008).  After waiving Miranda, there were two police officers present and one officer asked which officer Davis would be more comfortable talking with?  Davis replied “None of ‘em.”  The court held that because this response came after Davis waived Miranda, the issue is whether this is an unequivocal request for counsel.  The court held that the statement was equivocal; therefore, the officer did not have any duty to clarify Davis’ request.  The court reasoned that the statement could have meant that he did not feel comfortable with the two officers present but would have been comfortable with someone else.