May 2, 2008

Johnson, 33 FLW 265, Lab reports are testimonial when prepared for criminal trials and subject to Crawford and admission without the preparer's testimony is improper

Peters, 33 FLW 273, Crawford not apply to VOP or VCC revocation hearings

Belvin, 33 FLW 279, Breath test results pertaining to operator's procedures and administering the breath test operator's procedures and observations is testimonial and is subject to Crawford

Perkins, 33 FLW 1102, 1st DCA, search and seizure-plain feel-ofc conducting a pat down felt another object in the pocket after removing knife and ofc had to run the tips of his fingers over the object to determine that the object was a lump of powder cocaine or some other kind of narcotic, plain feel doctrine did not apply to validate search of def's pocket and seizure of cocaine wrapped inside folded up dollar bill-error to deny motion to suppress

Peterson, 33 FLW 1104, 1st DCA, Castle doctrine, no error in denying motion to dismiss where the def argued he had immunity from criminal prosecution pursuant to 776.032 because shooting occurred when def's brother assaulted him after being asked to leave the def's house-must demonstrate by a preponderance of evidence he is immune form criminal prosecution-def may raise claim pretrial and court determine of def has shown by a preponderance of evidence that immunity attaches-trial court may not deny motion just because factual disputes exist-trial curt applied the correct standard-def can submit to jury as affirmative defense

Barrett, 33 FLW 1126, 4th DCA, evidence did not support finding that def was armed during burglary as def broke into automobile dealership for taking something of value, found safe inside, which he loaded into a vehicle and hauled away from the scene, and opening the safe with a crowbar, found blank checks and loaded gun inside

Lewis, 33 FLW 1128, 4th DCA, trial court improperly shifted burden of proof to the def that he did not consent to a search, instead of determining issue upon totality of circumstances, including weighing credibility of officers testimony, which court itself questioned-trial court failed to weigh evidence and determine facts and merely shifting burden to the def to produce some affirmative evidence to disprove testimony of officers

G.M., 33 FLW 1145, 3rd DCA, fact that ofcs in unmarked car activated emergency lights so as to identify themselves as police officers before they pulled into public park behind vehicle occupied by juveniles did not convert consensual encounter into a seizure-no per se rule that use of emergency lights by police convert a police encounter into a seizure-conflict certified-juvenile did not see lights prior to ofcs exiting vehicle and smelling marijuana coming into vehicle in which juvenile was seated, activation of lights played no role in juvenile's actions and id not play any role in 4th A analysis of facts and circumstances here-no seizure occurred before establishment of reasonable suspicion and pc to arrest juvenile when ofc saw juvenile rolling a marijuana cigarette

Brocca, 33 FLW 1156, 3rd DCA, hearsay-sexual battery of mentally disabled adult-statements made by victim to mother are non-testimonial, admissible if state establishes factual predicate, witness either testifies or is determined to be unavailable and court makes finding on the record including basis for determining the reliability of v's statements-victim's statements to state attorney interviewer are testimonial and admission of such statement would violate the def right to confront the accuser unless the victim testifies at trial, or the v is unavailable or def had the opportunity for cross-exam

Walden, 33 FLW 1173, 4th DCA, error to deny motion to discharge based on filing case after 175 days and grounds def had to file notice of expiration of speedy trial was error-waiver of speedy trial in another case involving att murder charge from same fight had no effect on this case because the two cases involve distinct acts against separate victims

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