April 25, 2008

Kettell, Sr., 33 FLW, Fla Sup Ct, Shooting in to building-crime of wantonly or maliciously shooting into a building cannot be established solely by proof of the shooting itself-state must prove the shooting was wanton or malicious-error to instruct jury that statute is violated by person shooting into a building per se-error not harmless

Reynolds, 33 FLW 1043, 3rd DCA, conspiracy to traffic in marijuana, def erroneously convicted of trafficking no actual or constructive possession of marijuana found in warehouse in shrink-wrapped cardboard barrels in warehouse-def properly convicted of conspiracy as circumstantial evidence to prove an express or implied agreement between the def and another person

Palmer, 33 FLW 1054, 4th DCA, error to refuse to allow defense counsel to put before the jury the reputation of the victim for truth and veracity in the community where v's credibility was the heart of the defense and v's testimony was the only evidence linking the def to the shooting-not harmless where other witnesses denied def was at the scene of the shooting

Hill, 33 FLW 1055, 4th DCA, trial court properly suppressed evidence from canine sniff search because the search warrant were unlawfully executed where search was conducted prior to physical possession of executed warrants or where search was not conducted by the officer named in the warrants

Sanon, 33 FLW 1056, 4th DCA, statement made to the ofc by def's son who was not a witness at trial was testimonial and not a witness at trial, incriminating his father was testimonial and not admissible under Crawford v. Washington because there was no ongoing emergency, event described by the son occurred 20 minutes earlier and son did not seek the assistance of the police but rather ofc's approached the son, admissible of excited utterance is ultimately governed by Crawford

Lanier, 33 FLW 1059, 4th DCA, child abuse-no error in granting the def's sworn motion to dismiss where undisputed facts did not rise to the level of the conduct charged-teacher's act of stomping on one child's foot, positioning a child with ADD in small chair at the top of the steps and pushing chair toward the steps with her foot not an intentional act which could reasonably be expected to result in physical or mental injury, teacher was actually keeping eye on child rather than ignoring him at the time he fell over the edge and tumbled down the stairs

Bonus: Virginia v. Moore, 4-23-08, US Supreme Court; The police did not violate the 4th A. when they made an arrest that was based on probable cause but prohibited by state law, or when performed a search incident to the arrest. Driving with a Suspended license arresting ofcs under state law should have issued a citation and 4th A. not permit a search incident to a citation.

The Law Office of Roger P. Foley, P.A.