Law Updates for May 27, 2011

Delgado, 36 FLW 220, Supreme Court – Def who stole vehicle while a two-year old child was asleep in the backseat was erroneously convicted of kidnapping with intent to fabricate a felony where def was not aware of the presence of the child until after he stole the vehicle. Aware after of the act is not relevant to the kidnapping. State must prove def became aware of the presence of the victim before or during the commission of the underlying felony. Wiley, 36 FLW 1056, 4th DCA, Second Degree Murder – Error to deny JOA to 2nd D. Murder where evidence does not establish a depraved mind and with indifference to human life. Two eyewitnesses testified that the def hit the victim over the head with a gun and gun discharged and def claimed there was a scuffle and gun discharged and def claimed there was a scuffle and gun discharged in the def's attempt to secure the gun. Def conduct was less a result of malice and more extremely reckless behavior, insufficient to infer malice, evidence sufficient to sustain conviction for third-degree murder, as agg battery resulting in death can be third degree murder. Croce, 36 FLW 1958, 4th DCA – Error to not dismiss juror fo cause. Victim in a rape case, who stated in great detail her concerns about being on a jury in this case based on her past experience, concerns raise a reasonable doubt about ability to be fair and impartial. New trial where def used all challenges and forced to accept a juror lawyer wanted to strike. Thomas, 36 FLW 1059, 4th DCA, Discovery violation – Detective listed as a witness but not as an expert, when the state called to testify as an expert as to the packaging of the drugs, all while the witness was on the witness stand, def counsel not waive appeal based on accepting the court's remedy of having the def list as rebuttal state witnesses, Richardson hearing was inadequate here Guardado, 36 FLW 1087, 4th DCA, Blood test results – Error to deny motion to suppress medical records containing blood test results obtained by the state through subpoena following an automobile accident in which the def was the driver and two passengers were killed where state failed to establish a nexus between the medical blood and the automobile crash. State could not rely on results from the blood samples taken at request of the officer as basis for the subpoena for medical records where the state stipulated that the ofc did not have probable cause for the blood draw. State previous attempt not done in bad faith, state is not precluded from again seeking the medical records through subpoena if it provides further evidence demonstrating relevance of medical blood evidence. Dillon-Watson, 36 FLW 1089, 4th DCA, vehicle and motion to suppress – Court erred in denying motion. Search could not be based, as state admitted, as a investigatory stop based on an anonymous tip. Consensual encounter totality of circumstances reveal a reasonable person would not felt free to leave the encounter and def 's consent to search the car was not voluntary acquiescence as a show of authority"Let me take a good look at your vehicles and if everything checks out okay, you guys will be good to go." DeWolfe, 36 FLW 1106, 1st DCA, Hearsay exception, declaration against penal interest – Error to exclude testimony of two defense witnesses that heard third party confess to the crime for which the def was on trial. Third party unavailable, died by the time of trial, confession against penal interest, and corroborating circumstances were sufficient to demonstrate trustworthiness of declaration, credibility of in court witness is question for the jury and not judge and has nothing to do with admissibility. Error not harmless. The Law Offices of Roger P. Foley,P.A.

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