3rd DCA ROUNDUP

Better late than never, considering the volume of Supreme Court cases we have been reading lately:

Brown v. State: Judge Mark King Leban joins the HALL OF FAME (as opposed to the hall of shame) for conducting an evidentiary hearing on a rule 3 motion, and issuing a decision based on facts that the record supports. Take a bow Judge Leban, well done. (And dare we say dozens of your colleagues hanging in the hall of shame should take note of your thoroughness.) 

Fleuirmond v. State (or- how not to prosecute a case if you  want a snowball's chance in hell of having the conviction hold up on appeal.)

The Defendant was charged with drug trafficking. The court granted the defense's motion in limine to preclude the witnesses from testifying that the case occurred in a "high crime area." But you know these cops and prosecutors. They just love that "high crime area" argument. Totally irrelevant, but it's got "jury appeal". 

As the court of appeals wrote: 

The prosecutor stated that she had so instructed some of the 

officers, but was not sure if all of the officers had been so instructed.  The judge 

then stated, “I don’t want anything, any testimony about high crime area, any 

previous contact with anybody.” The prosecutor replied, “Surely, Judge. 

Understood.” 

 Incredibly, minutes later, one of the members of the police surveillance team 

gratuitously interjected the exact type of testimony that the motion in limine had 

tried to prevent. 

Say what you want about this ASA, but this silver tongued devil was not caught short when the court inquired about why the motion in limine had just been violated:

The prosecutor admitted that she had not 

complied with the court’s order.  When asked why she had disobeyed the court’s 

order, the prosecutor responded, “Judge, I mean, I absolutely -- the only -- you are 

right.”  

Talk about oral advocacy. 

Anyway, this ASA was not done, because she then resorted to imaging facts that she then argued in opening and closing argument. This is generally considered a "no-no" except in Texas and certain parts of Louisiana:

First, the prosecutor told the jury in opening statement that when police 

officers went into the house that had been under surveillance, they found 

Fleurimond attempting to flush drugs down the toilet.  The only place the 

defendant was flushing drugs down any toilet was in the prosecutor’s imagination 

because, during trial, the State presented no such evidence. During closing 

argument, the prosecutor told the jury: 

Now, this is all being radioed. This is not happening in 

split seconds. It’s happening quickly, but time is elapsing. 

And then the police go in and they find Mr. Fleurimond 

in the bathroom flushing the drugs down the toilet. 

Not surprisingly, the defendant will be receiving a new trial. 

SR v. State. A good case explaining the standard for a judgment of acquittal in self defense cases. Basically, when the defense proffers a self defense claim, the state's proof must rebut beyond a reasonable doubt the defendant's claim that s/he acted in self defense. If you have a self defense case going, read this one and print it out for the file. 

State v. Williams. Judge Rothenberg reversed Judge Alan Schwartz who was sitting as a trial judge and who granted an unsworn "sworn" motion to dismiss in which is was alleged that the item used to hit the victim ( a firearm) was not a deadly weapon. Note to Judge Schwartz:  sworn motions must be sworn to and firearms are, um...deadly weapons pretty much by definition.