Criminal law -- Burglary of conveyance -- Search and seizure -- Officer who received dispatch reporting car robbery in progress in his area exceeded scope of lawful investigatory stop where officer handcuffed defendant, placed him in police car, and transported him away from place where he was initially apprehended for a “show-up” -- Because transportation to “show-up” was illegal, trial court erred in denying motion to suppress identification
Reported at 33 Fla. L. Weekly D833a

Criminal law -- Evidence -- Hearsay -- Testimonial out-of-court statements -- Statements of burglary and battery victim who has died -- Deceased victim's statements to police officer who arrived at victim's home shortly after burglary were inadmissible under U.S. Supreme Court decision in Crawford v. Washington because they were testimonial out-of-court statements by a witness unavailable for cross-examination -- Statements to officer were testimonial because there was no ongoing emergency at time officer interviewed victim, and officer was interviewing victim to ascertain facts necessary to establish criminal activity, assist in further investigation, and further possible future prosecution -- Victim's statement that she had been robbed, made while calling for help, is admissible because it is an excited utterance and is non-testimonial -- Statements made by victim to her son when he first arrived at victim's house after burglary are admissible as excited utterances because the primary purpose of the statements was not testimonial, but to relate to a close family member what had happened to garner assistance and support
Reported at 33 Fla. L. Weekly D874b

Criminal law -- Lewd or lascivious conduct on victim less than 16 years old by offender 18 years old or older -- Evidence -- Trial court erred by prohibiting defense counsel from proffering minor victim's testimony regarding a prior accusation of sexual assault she made against another man -- Error was not harmless -- Fact that victim had not recanted prior allegation does not preclude defense counsel from inquiring concerning that allegation -- No error in denying defendant's motion in limine regarding defendant's conduct in text messaging, tickling, and telling victim to “‘take it out in trade” -- These acts were not evidence of collateral crimes, but were relevant evidence admissible as part of, or inextricably intertwined with, the crime charged
Reported at 33 Fla. L. Weekly D868a

Criminal law -- Sale of cocaine and marijuana within 1000 feet of school and public housing facility -- Evidence presented by state failed to establish prima facie case of guilt where police could testify only that they saw what they believed to be a hand-to-hand transaction and that defendant had received some amount of cash from driver in one exchange -- Although drugs were found in particular car, and police had observed an encounter and possible transaction between defendant and car's driver, there was no evidence linking drugs to defendant or limiting the possible source of the drugs found in the car -- Error to deny motion for judgment of acquittal -- Remand with instructions that defendant be discharged
Reported at 33 Fla. L. Weekly D858a

Criminal law -- Search and seizure -- Residence -- Consent -- Voluntariness -- Consent to search by defendant after several officers approached defendant's residence at 3:00 a.m. to conduct a “knock and talk” interview, officers made initial contact with defendant by means of a ruse, and defendant was advised of Miranda rights -- Trial court properly found that under totality of circumstances state met burden of establishing that consent was voluntary -- Circumstance that encounter between police and defendant takes place in middle of the night does not militate strongly toward conclusion that ensuing consent was involuntary -- Consent was not negated by ruse employed by police to initiate contact with residents -- Number of officers present did not have coercive impact on defendant -- Giving of Miranda warning to defendant did not indicate that he had been taken into custody
Reported at 33 Fla. L. Weekly D854c

Criminal law -- Search and seizure -- Stop -- Consensual encounter -- Contact between defendant and detectives who were working at train station could not be characterized as consensual encounter where officers approached defendant as he came out of ticket booth, and before police asked for permission to search defendant, they showed him their badges, told him they were narcotics detectives working at the train station and that the reason for their contacting defendant was that there was a large problem with people smuggling drugs on train, and asked defendant if he was riding the train and to produce his ticket -- Manner in which detectives approached defendant, one from front and another from the rear who passed defendant, with the result that both officers stood in defendant's path, was one circumstance which supported trial court's conclusion that contact was not consensual and that reasonable person would not have felt free to disregard detectives' questions and request to produce ticket and simply proceed on his way -- No error in granting motion to suppress
Reported at 33 Fla. L. Weekly D865a

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Appeal from order denying successive rule 3.851 motion and order concluding that defendant is not mentally retarded under rule 3.203 -- Pursuant to statute and rule, defendant must prove mental retardation by demonstrating significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which manifested during period from conception to age 18 -- Competent, substantial evidence supported circuit court's conclusion that defendant failed to prove any of these factors by clear and convincing evidence
Reported at 33 Fla. L. Weekly S219a
                                                   Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917