WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Friday, October 23, 2009

3rd DCA ROUNDUP

Tunis reversed edition.

The big case that made the paper was Arias v. State, in which Judge Tunis was reversed for refusing to allow the defense to enter evidence from The ME that the deceased had alcohol and cocaine in his system prior to his fateful encounter with the defendant.

Here are the facts: The Defendant is a hard working security guard licensed to carry a firearm. Before the incident the Defendant was planning on taking his disabled daughter and a friend to a relative's house so he could go to work. The deceased, high on alcohol (.21) and cocaine, had illegally parked his car so the defendant could not drive out of his parking space and get to work.

There was a confrontation. The defendant told the deceased he was armed and should walk away. The deceased ripped off his shirt and began walking toward the defendant in a threatening manner. The defendant killed the deceased.

If ever there were facts of a case that would cause me to shed my anonymity and defend someone for free, it is the facts of this case.

Read the opinion to see the prosecutor's cross examination of the defendant. It is horrible. I don't know how that prosecutor can sleep at night. Here is what the 3rd DCA said of the cross:

Further, the State’s parting shot was to make it appear that the

defendant’s testimony that the victim “was acting crazy like on cocaine” was just

an assumption. Of course, the State knew that the toxicology results (excluded on

the State’s motion) confirmed the defendant’s observations. This cross-

examination was totally improper. Because this cross-examination deprived the

defendant of a fair trial, we must reverse for a new trial.



Prior to the trial beginning the state had successfully moved in limine to prohibit the defense from introducing the toxicology results during trial. The 3rd DCA also reversed this ruling:
The next question to be considered is whether the trial court erred in entering

the order in limine. We conclude that, so long as the defendant takes the stand and

testifies to his observation of the intoxication of the victim, the toxicology results

are admissible.



This case stands for the proposition that when a deceased is acting irrationally and it turns out the deceased was intoxicated on alcohol and cocaine, and the defendant testifies to observing the irrational behavior, the toxicology results are admissible.


According to Professor Ehrhardt, “The conduct of the victim is

material under the substantive criminal law only in a few situations. The most

common situation is when the defense asserts that the accused acted in self-

defense.” Charles W. Ehrhardt, Ehrhadt’s Florida Evidence, § 404.6 at 207 (2009)


The defendant was a hard working man. One assumes he has no prior record because he held a security guard license to carry a firearm. It appears he was a dedicated father of a disabled child. The deceased was-at least on this day- an intoxicated lout who cared not one whit for the rights of hard working and law abiding citizens. The prosecution indicted the defendant for first degree murder! First degree murder.

This prosecutor looked at this case and decided this defendant planned to kill this lout and deserved to spend the rest of his life in jail, despite the fact that all the objective evidence showed that on the day of the incident all the Defendant wanted to do that day was take his daughter to a relative and go to work to support his family.

Something is very very wrong with the way this case was handled.


That's all for the 3rd DCA today. This case is enough for one day.

PS: Congrats to Robert Kalter of the PDs office for winning this one. It must be a great feeling to know he used his legal skills to help save the life of a man who deserves saving.






29 comments:

Anonymous said...

Wow.

Who in the SAO authorized the First Degree Murder charge??

Names, please.

Anonymous said...

So let me see if I have this correct! "Rumpole"!

I go out for a few drinks, maybe I dabble in Cocaine. I go out and about and park behind someone's car for what ever reason, and if he is a licensed security officer (rent-a-cop) allowed to carry a gun, he now has the magical right to shot me dead? What ever happened to calling 911 when things get heated? Who gives him the right to choose when to discharge his weapon versus calling 911 for police assistance? The guy was in a hurry and had no time for calling the police. He got hot under the collar and the guy who thought is was fist fight got shot dead.

Why shoot to kill? I liked to know more about the security officer. Maybe he has been known for getting into confrontations with people at his security guard job.

Frankly, Rumpole, if this was a real Police Officer you would be screaming that it was police brutality and they did not have to kill the victim (what would have been a dead defendant), he has time to shot an unarmed man, he has time to call 911.

All the 3rd DCA did was say that he should be allowed to speak about the ME results if he chooses to testify at trial. Don't start attacking the SAO for doing it's job.

If I get drunk in public, under your thought process I am a dead man if I run into you.

911 very easy to dial and guess what the police will come. Plus if he really needs to shoot the victim at least it is all recorded for his benefit.

Anonymous said...

Tunis should be embarassed, but we are not surprised. She was a trial scared hack PD who twisted her clients' arms to plead guilty, and trained a whole cadre of lawyers that doing so was fine (think leisbeth taseff). Tunis is really as reactionary and unfair as they come, bar none. what a crazy ruling. maybe jack thompson was on to something....

Phil R said...

Rumpole your offer to defend this man for free (very admirable) reminds me of something Rudy Sorrondo did.

I was prosecuting a man who had hunted down and shot and killed a person who had slept with both his wife and if I recall correctly his 16 or 17 year old daughter.

It was a cold blooded killing but there was a certain amount of sympathy with the defendant's actions-especially where it related to his daughter.

I was somewhat boxed in by my office and my plea offer was something like second and 24. Rudy Sorrondo was sitting in court and heard the defendant speak from the box- he was represented by the PD and they weren't getting along. Rudy asked me about the facts- I gave him the run down- and then he met with the client in the jury room- and later that day took on the case pro bono.

I can't remember how it turned out- I think he ended up getting second and ten- but I was always struck by Rudy's actions. What Rudy did was the kind of thing I thing we all aspire to do- use our skills to help someone who has made a poor choice but is ultimately a decent person. If I recall the defendant was an engineer in Cuba and had emigrated here and was working as store clerk- and I think the victim was his boss- and the defendant was working in a menial job until he could get some university courses completed here and get licensed.

Anyway- I would like to hear the prosecution's side to this story because it is an outrage on the face of it to read that this man was indicted for first degree murder.

Fake Risivy said...

An Outrage!

fake mendy said...

A shandah!

fake jay white said...

Go Dolphins

Rumpole said...

9:52- If you get drunk in public and do something obnoxious like box me in with your car while I am trying to get to work- and then threaten me- and then when I warn you that I am armed- you rip off your shirt and charge me- then notwithstanding our relative physical capacities- I am going to adopt the police officer's credo and say "better to be judged by twelve then carried to my grave by six" and you sir, will have one well placed 9mm right between your cocaine and alcohol crazed eyes.

Anonymous said...

9:45 - who authorized the First Degree Murder charge??? Uhhh, that would be the Grand Jury. What's your name, oh person with the stupid question?

Anonymous said...

I tried the case for the defense when I was with the PD's office. I always felt that first degree murder was way over charging the case. The major problem with the case was that my client shot the unarmed man seven times. That was a difficult fact to overcome. At least now the jury will hear about the deceased's blood alcohol level. They should have heard it the first time.

Anonymous said...

Judges Behaving Badly by Susannah Nesmith at the DBR online

Anonymous said...

Forget this nonsense- read the DBR cover article about all the judges bickering about seniority and division assignments. It is certainly worth its own blog thread.

Apparently, Jorge Cueto wants pre-trial release from bond court and it is being denied by Chief Judge Brown. The newest open circuit slot is being given to Arzola, but Cueto cries bullshit and thinks he should get it. Says Arzola doesnt have seniority over him. A Battle Royale

Comments from Reemberto Diaz, Betty Butchko, Rob Pineiro, Robin Faber and everyone's favorite Peter Adrien. Great e-mail from Diaz. Lawsuits have been threatened. Grab your date, a bucket of popcorn, a cool beverage snuggle on the couch and get ready for the fireworks.

Rump, we need a title for this movie. We also need to cast actors.

I nominate this be called
"A Streetcar Named Cueto."

Al Pacino as Cueto
Orlando Bloom as Arzola
Julia Roberts as Butchko
Tom Hanks as Brown

Okay... discuss.

Anonymous said...

Rumpole,

This article should serve as a reminder why we should always be vigilant:

http://www.slate.com/id/2232561/pagenum/all/#p2

Anonymous said...

10:57 am - "had slept with", or had nonconsenual sex? Cause it makes a difference.

Anonymous said...

After the 2006 Stand Your Ground law, this case may not have been filed.

The Clerk's Office website indicates that the prosecutors were T. Forrest and K. Cortes and that the defendant got convicted of manslaughter with a firearm as a lesser included offense and was sentenced to 25 years with 906 days of credit for time served.

The issue at trial would have been whether the defendant was in reasonable fear of imminent death or substantial harm from the
decedent and whether he could have reasonably used deadly force to prevent it. Being a pre-Stand Your Ground law case, the old duty to retreat would have also been at issue.

The cocaine intoxication issue was crucial to the defendant's state of mind and should not have been excluded by Judge Tunis either in the pre-trial order in limine or, even less so, after the defendant's testimony and the improper cross by the prosecutor. However, once someone is labeled as a "victim", the waters of legal analysis and sound evidentiary rulings get muddied.

The issue of the cocaine intoxication by the decedent is critical because it changes completely the picture with respect to self-defense. Cocaine-intoxicated people can have cocaine psychosis and develop unusual aggresivity, strength and stamina that will keep them charging and attacking even when mortally wounded. In fact, police departments switched from the 9 mm Luger to the .40 S&W caliber because of cocaine-intoxicated subjects who kept up and on the attack after taking a full magazine of 9 mm bullets. This is more relevant in this case because the defendant was 57 years old at the time.

Let's see what happens at the re-trial if the state does re-try the case.

Anonymous said...

People who are simultaneously under the influence of a CNS stimulant (like cocaine) and a CNS depressant (like marijuana or alcohol) can be very dangerous because they develop a "Superman" complex that makes them do crazy things (like attack an armed man) because the combination of drugs makes believe that they are invincible and that nothing bad can happen to them.

Anonymous said...

I looked the guy up. She gave him 25 years and he is Cuban with an ICE hold.

Docket says Tammy Forest ASA but, that could have changed at trial. I wonder who the ASA was who did that unethical cross?

Rump, tell us who the ASA was.

Tunis, you should have JOA'd that case. This is why we don't trust you in the defense Bar.

Anonymous said...

First off Rumpole, if you are carrying a 9 - man up dude. Pick up some real firepower, something that will stop a coked up, drunk idiot in a rage!!

Second, head shot? A controlled pair, in the cardio-thoracic cavity - see FrontSight website and take a class.

Anonymous said...

Phil R - who was the PD telling her client in the box to plead to 20? Hmmm... somone who runs around chasing her tale, papering the file, talking to experts, asking questions loudly down the hallway, and then never ever trying a case? blond?

Anonymous said...

11:39 - Grand juries don't do squat unless an ASA asks them to. What ASAs screened this case?

Anonymous said...

1:45 pm, the judgment of conviction says that the state was represented at trial by T. Forrest and K. Cortes. In the docket, you get the book and page number and, in the recorded documents link of the clerk's website, you can see the actual document.

11:58 am, as to the 7 shots fired by defendant, don't forget that in police shootings, the question often arises as to why the police officers fired so many bullets. The answer given is that, once the split-second decision to shoot is made because the officer was in reasonable fear for his life, he will shoot till the subject goes down and is no longer a threat and that he shoots reflexively in those fear-driven seconds.

Most semi-automatic pistols fire the first round in double-action mode which takes longer for the trigger to travel and requires more finger pressure to fire the shot because the first part of the pull cocks the hammer and the second part drops it. After the first shot, however, the slide's rearward travel cocks the hammer and moves the trigger back and all the shooter has to do is tap the trigger to drop the hammer, as if in single action mode. This makes it very easy to fire several rounds in a very short time. Guns that have a striker and no hammer, like the Glocks used by many cops and security guards, have very light trigger pulls and cycle very quickly.

Were 7 shots reasonable in this case? Were they fired while the victim was still charging the defendant or after he went down? Which shot was fatal and when was it fired? Perhaps the Public Defender's Office should hire an expert in police shootings involving intoxicated persons to see whether this shooting was reasonable. In one famous case in the literature, a cop had to get psychological treatment for the trauma he suffered when an unarmed cocaine-crazed man kept charging in a terminator-like fashion after the cop had emptied his pistol into him. So, maybe, 7 shots were reasonable in this case.

Anonymous said...

Why was Tulio Arias prosecuted for first degree murder in this case and former police officer Jorge Espinosa was not charged with anything in the death of Leonardo Barquin who was also unarmed?

Can Tammy Forrest or Katheline Cortes shed some light on any differences between those shootings and their outcomes?

Anonymous said...

phil drop the charade of writing separately

Anonymous said...

Perhaps the defense should have had ASA Forrest pee in the cup and introduce her tox results.

Anonymous said...

Rump
Sorry but I have to dusagree w/ 10:33. I have been Boots trial partner, and she was my supervisor at one time. We have tried cases together. She aint a lay about, nor is she scared to go to trial. She is a fine trial attorney.
DS

Anonymous said...

Rumpole at Friday, October 23, 2009 11:13:00 AM

Why is 911 never called ever in your mind before pulling the gun?

I would like to know if he shot any bullets after the victim was on the ground? Police report please!

Anonymous said...

Man, 10:33, you have never been a prosecutor going against Liesbeth Boots, if you think she's a hack. Count me as one prosecutor who would rather be drug across a courtroom by my eyelids than see Boots at the other podium. She is tenacious, well-prepared, smart and committed. On top of that she has the best passive aggressive manners this side of Edith Georgie. Add it all together and you get one long fucking day in trial. Never any fun. I have not lost to her, yet, but you damn sure can't phone it in when you're going against her.

Anonymous said...

Yeah, I have to chime in about the APD discussed by 2:23:00. She's no slouch. Tries plenty of cases and knows what she's doing. She was well-respected by a lot of ASAs.

You're way off-base 2:23:00.

Anonymous said...

The retrial, if any, will be interesting.

Without second-quessing the State, Defense or Judge, 7 to 8 shots, at point blank range against a man naked above the waist, with clearly no weapons in his hands, will be interesting. Couldn't that be Manslughter? Even if the jury knows this time he had cocaine in his system.

Congrats to Robert Katler. J. Tunis doesn't make this many mistakes during trial. You caught her here.