Law Updates for February 5, 2010

Cox, 35 FLW 241, 4th DCA, New trial where state affirmatively engaged in conduct that was the functional equivalent of interrogation. Post invoking his rights and telling det he did not want to talk to him out of fear the conversation was being recorded, det assured him no recording was being performed, creating a false illusion of privacy in the interrogation room, utilized a co-def who was given leniency in exchange for baiting the defendant to utter incriminating statements. Co-def was acting as an agent of state violates Massiah, error not harmless as statements to the co-def was the heart of the state's case as there was no physical evidence presented.

Cooper, 35 FLW 246, 4th DCA. Detective's question to the def after arrest, as he was asked would he like to give a post-Miranda statement, was likely to elicit an incriminating response and def admission before the Miranda warning should have been suppressed.

Harvey, 35 FLW 262, 5th DCA, Independent act instruction. Should have been given here where it was supported by the evidence that def intended to participate in the sale of marijuana and robbery and murder that occurred in connection with the attempted drug purchase were independent act of the co-defendants.

Browder, 35 FLW 271, 2nd DCA, Motion to dismiss should have been granted by the lower court, no genuine issue of material fact, and state failed to meet its burden to present any disputed or additional facts that would bring the knife out of the definition of a "common pocketknife."

Nawaz, 35 FLW 272, 1st DCA, Consideration of def's national origin in sentencing was fundamental error-case of first impression-remand for re sentencing in front of a different judge.



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