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Is That 9-1-1 Call Going to Get Admitted into Evidence?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

You would think that the answer to this question would be a nice and simple yes or no. However, like most things in the law, it’s much more nuanced than a non-lawyer may initially believe. If you’re a lawyer reading this, you know that the answer is “it depends.”

9-1-1 Call Has Confrontation Issues

As an initial matter, the United States Constitution guarantees a criminal defendant the right to “confront” his or her accuser. This was interpreted by the U.S. Supreme Court to require a defendant to have the ability to cross-examine a person who makes testimonial statements. Crawford v. Washington, 541 U.S. 36 (2004). In other words, an out-of-court statement, which is testimonial in nature, is only admissible if the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.

So what is a “testimonial” statement? Again, it’s not as simple as you may initially believe. The courts have developed a “primary purpose” test to determine whether an out-of-court statement is testimonial. If the primary purpose of the statements is to enable law enforcement to meet an ongoing emergency, the statements are not testimonial. 9-1-1 calls made for the purpose of summoning law enforcement to respond to a crime that already occurred or that is in progress are not testimonial by that definition. Davis v. Washington, 547 U.S. 813 (2006). On the other hand, statements taken by police officers in the course of interrogation are “testimonial” and subject to the Confrontation Clause when the circumstances indicate there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events relevant for later prosecution.

As such, most 9-1-1 calls will be deemed non-testimonial and not subject to exclusion under Confrontation Clause analysis. Of course, some portions of any given call may be “testimonial” while others are not. Therefore, a careful analysis of all the statements made during a call should be scrutinized for confrontation issues.

But is the Call Hearsay?

Generally speaking, even if a statement passes Confrontation Clause analysis, it is still subject to exclusion if it is hearsay and does not satisfy any exceptions to the exclusion of hearsay. Fla. Stat. 90.802 holds that hearsay evidence is inadmissible.

Fla. Stat. 90.801 states, in relevant part:

(1) The following definitions apply under this chapter:

(a) A “statement” is:

1. An oral or written assertion; or

2. Nonverbal conduct of a person if it is intended by the person as an assertion.

(b) A “declarant” is a person who makes a statement.

(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

With regards to hearsay evidence, the first determination a court must make is for what purpose is the evidence offered. If it’s offered for the truth of that statement, it is hearsay and inadmissible. If it’s offered for another purpose and the evidence remains relevant, it’s admissible. For example, if a 9-1-1 caller states, “the driver ran a red light before crashing into my vehicle,” that statement, when offered by the State to prove that the defendant ran a red light, is inadmissible unless it satisfies an exception to the exclusion of hearsay evidence. On the other hand, a 9-1-1 caller’s question about whether he needs to remain on scene is not hearsay because it’s not proof of anything relevant to a charge.

As can be seen just from the definitions of hearsay, most statements made to a 9-1-1 operator will be hearsay. Information such as the identity of the perpetrator, what he/she did, what he/she looked like, where the crime occurred, etc. would be offered by the State to prove the content of those statements.

But that doesn’t end our inquiry.

But is the 9-1-1 Call an Excited Utterance?

Fla. Stat. 90.803 defines an “excited utterance” as “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This type of statement is not inadmissible into evidence even though the declarant is available to testify at trial.

The rationale behind this exception to the hearsay rule is that a person who is excited as a result of a startling event does not have the reflective capacity essential for conscious misrepresentation. Therefore, statements that are made by a person who is in a state of excitement and has not had the opportunity to engage in reflective thought are considered to be essentially spontaneous and have sufficient guarantees of truthfulness. As long as the excited state of mind is present when the statement is made and there has not been an opportunity to engage in reflective thought, the statement is admissible. Moreover, courts have held that this excited state may exist a significant length of time after the event though no bright line test has been established.

Florida’s appellate courts have offered guidance in determining whether the necessary mental state exists by identifying a host of relevant factors which bear on the determination: the length of time between the startling event and the statement; the age of the declarant; the physical and mental condition of the declarant; the characteristics of the event; and the subject matter of the statements. Of course, the burden of establishing that a subject statement sufficiently meets the conditions so as to be deemed an “excited utterance” is upon the proponent of the evidence. Moreover, if the time between the startling event and the statement is long enough to permit reflective thought by the declarant, the offering party has the burden of demonstrating that the declarant did not actually engage in reflective thought, presumably a difficult burden to meet.

Generally speaking, 9-1-1 calls made at the time of the crime or immediately thereafter will meet the requirements for the excited utterance exception to the bar on admission of hearsay evidence. However, when the call is delayed and the person is no longer under the stress and excitement of the call, it will be excluded.

State v. Gotschall

In State v. Gotschall, 27 Fla. L. Weekly Supp. 475a (Osceola Cty. Ct. July 15, 2019), the trial judge had to consider whether a 9-1-1 call, relaying the theft of a service dog, was admissible into evidence.

The call was made 30 minutes after the alleged crime and relayed information such as the location of the crime, the sex of the assailant, names of witnesses, locations of video cameras, and the victim’s personal identity information.

In an extremely well-reasoned opinion, the Court excluded the evidence. As an initial matter, the court found that the call was non-testimonial because the primary purpose of the call was to meet an on-going emergency and to summon law enforcement to the scene of the crime. However, the court found that the call was hearsay because the prosecutor wanted to use the statements made to prove that, in fact, the assailant was female, that the victim’s dog was stolen from her, and the location of the crime. It further held that the statements were not excited utterances because there was no evidence that the caller was still under the stress of the event and that the caller, in the 30 minutes before the call, did not engage in reflective thought relative to the crime.

Valrico Trial Attorney

Adam L. Bantner, II is a board certified criminal trial law attorney. He is conveniently located in the heart of Valrico and can handle your criminal defense matters in Hillsborough, Polk, and surrounding counties. Give him a call today at 813.397.3965 to set up your free consultation!

Don’t Post Evidence on Facebook!!!

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

It should go without saying, but you can do your criminal defense attorney a huge “solid” by not posted evidence of a crime on your Facebook or other social media account. While it didn’t directly address social media posts, an opinion from the Third District Court of Appeal in Florida reveals how posts can be used against a criminal defendant.

Facebook Post Links Firearm to Defendant

In Barnes v. State, 44 Fla. L. Weekly D2283a (Fla. 3d DCA 2019), Barnes was convicted by a jury of three counts of attempted first-degree murder. The evidence against Barnes consisted of eyewitness testimony from each of the victims that Barnes was the person who shot them. Each of them also testified that the weapon used was a black, semi-automatic handgun with an extended clip. A similar weapon, and perhaps the same weapon, was recovered from another person, George Avila.

Without more, the weapon is likely not admissible in trial because there is nothing to link Barnes to the firearm. However, this is where Facebook comes into play.

The State, after having obtained a warrant to search his Facebook account, found pictures of Barnes with a similar weapon tucked into his pants. The State was also able to prove that the picture was posted relatively close in time to the alleged crimes. As such, the State now possessed evidence that Barnes possessed a similar, if not the same, firearm as the one used in the crime close in time to the alleged crime. That coupled with the eyewitness testimony was more than enough to convict Barnes.

Other Examples of Foolish Posts

A quick Google or DuckDuckGo search will reveal numerous other incidents of foolish posts by criminal defendants. Some of our favorites are:

Posting location and work schedule when you have a warrant out for arrest.

Siphoning gasoline from a police vehicle and sharing said crime on Facebook.

Any my personal favorites, don’t “Like” the police department’s Facebook page if you are fleeing from said law enforcement agency.

Call Us For Your Free Consultation

While we hope that neither you nor a loved one is on the wrong side of the law from an ill-fated social media post, if you are, give us a call at 813.397.3965 for your free consultation with an expert criminal defense lawyer. We serve all of Hillsborough County and will travel to Polk, Pasco, Manatee, and Pinellas counties as well.

The Bantner Firm

Valrico Law Group

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

Get Expert Legal Help Today!

Before you enter a plea of guilty or simply accept the help of a public defender, give us a call at 813.397.3965 to set up your free consultation. We’ve tried over 30 cases and have represented hundreds (if not thousands) of individuals since 2006 with successful resolutions of their cases. Put our expertise to work for you today!

There is not a “logical sequence of events” exception to hearsay

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Contrary to what many prosecutors, and a few judges, believe, there is not an exception to the prohibition to the introduction of hearsay (an out-of-court statement entered into evidence for the truth of the matter asserted) when that hearsay statement is offered to prove a logical sequence of events. A common response to an objection to its introduction is that it is not offered for the truth of the matter asserted, i.e., it is offered to prove the effect on the listener. Or, in other words, it’s offered to explain why someone took a certain action.

However, when that’s the case and depending on the type of statement offered, it can be greatly more prejudicial than probative and, therefore, inadmissible under Fla. Stat. 90.403, or simply irrelevant and immaterial and, therefore, inadmissible under Fla. Stat. 90.401.

Case Law Support for Exclusion

Fortunately for trial lawyers like myself, we have some recent support from the 4th DCA that we can use to educate courts when arguing for the exclusion of this type of evidence. In Conyers v. State, 44 Fla. L. Weekly D1844b (Fla. 4th DCA 2019), the Court reversed Conyers’ conviction for trafficking by purchase of oxycodone for the improper introduction of such evidence. Here are the relevant facts from the case:

At trial, the undercover officer who conducted the drug buy testified that before the sting operation, a confidential informant told the officer that a six-foot-tall, heavy-set black male known as Angel, who drove a two-door red Ford F-150 pickup truck, was “interested in purchasing large quantities of prescription pills in the City of Hollywood.” The officer testified that the informant also gave him Angel’s phone number. With the description and phone number provided by the informant, the officer identified appellant as Angel and began his investigation.
Appellant objected to the officer’s testimony and moved for a mistrial. He argued that the officer’s testimony about the confidential informant’s comments about appellant was hearsay and improperly suggested that appellant had a propensity to purchase large amounts of opiates. The State argued that the statements were not hearsay because they were not offered for the truth of their content but were intended to show the effect on the listener, i.e., the police officer, who then opened an investigation.

As is clear from just these facts, the State doesn’t really want the jury to learn why the officer targeted Mr. Conyers, they want the jury to know that there is a person out there who wants to purchase drugs and that person is “Angel,” who is identified as Mr. Conyers. The statement is highly prejudicial and from someone whom the defense cannot cross-examine because he is not in court. Furthermore, it’s immaterial because why the officer targeted Mr. Conyers is irrelevant to the facts they must prove in order to garner a conviction. The better practice is for the testifying officer to simply say that he was acting on a tip or information received. State v. Baird, 572 So. 2d 904, 905 (Fla. 1990).

Fortunately for Mr. Conyers, the Fourth DCA followed Baird and vacated Mr. Conyers conviction and sentence (7 years Florida State Prison followed by three years of probation) and remanded his case for a new trial. The Court held:

In this case, the trial court erred in allowing the officer to give inherently prejudicial hearsay testimony regarding appellant’s alleged drug activity in the community. The State’s contention that this testimony was not hearsay is simply wrong. Even if the informant’s statements were not offered for their truth, they were irrelevant, because the police officer’s reason for investigating appellant was immaterial. See Baird, 572 So. 2d at 908. Moreover, the risk of unfair prejudice outweighed any probative value. The error was not harmless, see State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly, we reverse the judgment of conviction and remand for a new trial.

Experienced Tampa Trial Lawyer

Adam Bantner can help you and/or your family if you’ve been charged with a crime. It’s important to have a trial lawyer on your side when doing batter in a court of law. Give us a call today for your free consultation. 813.397.3965.

Criminal Justice Legislative Update

Updates to Florida Criminal Justice Laws From 2019 Legislative Session

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

The 2019 Florida legislative session saw some significant changes to the criminal statutes. Some of these changes are significant (removing the requirement for a Youthful Offender sentence that a defendant be sentenced prior to their 21st birthday) while some make you wonder if it was really necessary (removing 1-year minimum mandatory for sale and distribution of horse meat).

Regardless, the reforms are mostly positive for those who practice in the world of criminal defense. I attempt to lay out most of the changes below.

Harm to Police Animals

SB 96: Increases the penalty from a third-degree felony to a second-degree felony for any person who intentionally and knowingly, without lawful cause or justification, causes great bodily harm, permanent disability, or death to, or uses a deadly weapon upon, a police canine dog, fire canine dog, SAR canine dog, or police horse.

Child-like Sex Dolls

SB 160: Makes it a third-degree felony to sell, distribute or possess with intent to sell or distribute a child-like sex doll. Makes possession of such a doll a first-degree misdemeanor.

Expansion of Eligibility for Veterans’ Court

SB 910: Adds individuals who are current or former United States Department of Defense contractors; and individuals who are current or former military members of a foreign allied country to those eligible Veterans’ Court Treatment Program

Texting and Driving

HB 107: Make texting and driving a primary offense, i.e., you can be pulled over for it. It also makes it offense to use a phone in any hand-held manner in a school or construction zone.

Many Changes in One Bill

HB 7125: An omnibus criminal justice bill that makes many changes. Some of the highlights are:

  • Reduces the driver’s license suspension for drug offense convictions from 1 year to 6 months. Suspension can be shortened upon drug abuse evaluation and completion of any recommended treatment. Additional, court “upon a finding of compelling circumstances,” may direct DHSMV to issue a business purpose only license.
  • A third conviction of Driving on a Suspended/Revoked License now will require at least 10 days in jail.
  • Removed minimum mandatory sentence of 1 year for offenses related to the sale and distribution of horse meat.
  • Raises the felony threshold for theft of food and lodging services from $300 to $1,000.
  • Removes driver’s license suspension penalty for offenses related to selling to and possession of alcohol by persons under 21 years of age.
  • Reduces possession of distilling materials from a felony to a misdemeanor.
  • Reduces penalties for possession of moonshine.
  • Increases the threshold for felony grand theft from $300 to $750.
  • Reduces from a felony to a misdemeanor the keeping of a gambling house.
  • Increases minimum mandatory weight thresholds for trafficking in hydrocodone
  • Allowing for expunction of charges dismissed due to lawful self-defense.
  • Allowing for automatic early termination of probation or conversion to administrative probation upon completion of at least half of term and all the special conditions of probation.
  • Creation of an alternative sanction program for first-time technical violators of probation provided certain eligibility requirements are met.
  • Creation of a community-based court program for certain misdemeanor offenses.
  • Allows persons to be sentenced as a youthful offender, so long as they otherwise qualify, so long as the crime was committed before they turned 21 years of age (prior requirement was to be sentenced before turning 21 years of age).
  • Deletes mandatory direct-file of certain juvenile offenders.

Do I Have to Do Field Sobriety Exercises?

You Can Say, “No,” to Field Sobriety Exercises

This is the short version of the standard FSEs. The officer will be looking for much than the simple completion of these exercises.

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

As a criminal defense and DUI attorney, one thing is certain to occur over and over again at social gatherings; someone will ask me whether they should take a breath test and should they perform field sobriety exercises if they’ve been pulled over by law enforcement and suspected of committing a DUI. While the scope of this post does not include an answer to the first part (however, short answer is don’t give them your breath, but there are many, many factors you should consider prior to making that decision), I will attempt to explain the law and response that will best help you and your attorney as you defend your DUI.

The Law of Field Sobriety Exercises in Florida

First, the law on this issue is by no means clear and settled throughout the State. In fact, the law sometimes seems to vary between courtrooms in the same County in the same Circuit! However, there seems to be some consistency in general principles in Hillsborough County.

First, if an officer does not possess reasonable suspicion of impairment, they cannot request a suspect to perform field sobriety exercises. If an officer possesses reasonable suspicion of impairment, then can request performance of field sobriety exercises but they cannot compel performance. Where an officer possesses probable cause of driving under the influence, an officer can compel performance of field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287a (Hillsborough Cty. Ct., 13th Cir., December 7, 2006). The Court in State v. McFarland, FLWSUPP 2702MCFA, (Fla. Broward Cty. Ct. 2017), affirmed by State v. McFarland, 26 Fla. L. Weekly Supp. 546a (Fla. 11th Cir. Ct. 2018), agreed with the Carney analysis.

Next, for the purpose of this article, you don’t need to concern yourself with whether you believe the officer possessed reasonable suspicion of DUI, probably cause of DUI, or neither. These are legal conclusions that law enforcement, attorneys, and judges can and do get wrong. What you do need to know is that a refusal to perform the requested exercises will only be used against you in court if the officer possesses at least probable cause of DUI. If the officer possesses any level of suspicion less than probable cause, the request to perform the exercises is just that, a voluntary, consequence-free choice with the ability to say, “no.”

Now, should you say “no”?

Don’t Do The FSEs!!!

There are a myriad of reasons why one should not perform the field sobriety exercises; we are just going to focus on a couple of them.

One, if the officer is asking you to do the exercises, there is little to no chance that your performance on the exercises will dispel any suspicion of DUI by the officer. At this point in the investigation, he is in the evidence gathering phase and he is looking to build his or her case against you. In sum, you’re taking a ride to county jail regardless of your performance.

Second, you are, most likely, not going to do well on the exercises. The first test, the Horizontal Gaze Nystagmus, or “HGN,” is the most reliable by the scientific evidence but also the hardest to independently verify. Any recorded video will not show your performance. As such, the officer’s report of your performance is almost unassailable if he performed it to standards. Also, there are other factors that can cause nystagmus in addition to consumption of alcohol (fatigue, allergies, etc.).

The second and third tests, the Walk and Turn and One-Leg Stand, are also problematic. For most of the public, any performance of these exercises are likely your first attempts at either. Did you hit a homerun in your first little league at bat? Most likely not. Furthermore, the officer is not looking for simple completion. He is looking for clues that indicate impairment of which you will not be aware. For example, if you walk the line without falling, you may think you passed. However, if you raised your arms more than six inches, you missed heel-to-toe by more than an inch, you turned improperly, or you started early, you showed impairment. Also, you will be performing these, most likely, late at night, roadside, and under the stress of an impending arrest. Again, you are not likely to do well.

All this leads to the nearly inescapable conclusion that the rewards of a good performance are greatly outweighed by the dangers of poor performance. So when the officer asks, “Will you take these tests?” politely decline citing this article and your fears that the stress of the situation would cause you to perform poorly.

Call Hillsborough DUI Lawyer Today!

After the officer arrests you (because his mind was made up to do so the moment he made the request), bond out of jail and give us a call. We’d love to help! 813.397.3965.

How Do Trial Courts Still Get Restitution Wrong?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Somehow, Florida courts continue to get restitution wrong. My guess is that this stems from the fact that judges will typically rotate amongst the various benches, i.e, criminal, civil, family, probate, traffic, etc., and that various legal principles will bleed into an area of the law where it simply does not belong.

For example, in courts of equity, the judge has the power to do what it takes to make a situation fair. Of course, they are constrained by various statutes and case law, but they typically will have a lot of discretion to make a situation “right.” However, with regards to any amount of restitution owed to a victim, the law is pretty clear.

The Restitution Statute, Fla. Stat. 775.089

Fla. Stat. 775.089 states: “…the defendant to make restitution to the victim for: 1. Damage or loss caused directly or indirectly by the defendant’s offense; and 2. Damage or loss related to the defendant’s criminal episode.

This language has been interpreted as, typically, setting fair market value as the appropriate measure of restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991). Additionally, restitution is not intended to provide a victim with a windfall. Rodriguez v. State, 956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) Therefore, restitution may not exceed the damage caused by the defendant’s criminal conduct.

Restitution Should Not be Used to Pay Off a Loan Balance

With the aforementioned law of criminal restitution mentioned above, the heading for this section should be self-explanatory. However, a Duval County trial judge held that a criminal defendant was liable to the victim for the entire balance of her vehicle loan and not just the fair market value of her vehicle. As I indicated in the opening, I think the judge did what she believed was fair and, unfortunately, failed to follow the law. After all, who wants to continue making payments on a totaled vehicle? Fortunately, though, the First DCA corrected that error in Tolbert v. State, No. 1D17-3240 (Fla. 1st DCA 2019).

Tolbert was convicted of stealing his ex-girlfriend’s vehicle. Prior to his arrest, he totaled the vehicle fleeing from law enforcement. The victim bought the vehicle for $14,000 and still owed over $14,000 at the time of the loss. Insurance paid off approximately $3,000 of the balance. Testimony at the restitution hearing set the value of the vehicle $6,100. However, the trial court set the restitution amount at almost $12,000 (the difference between loan balance and insurance payout).

This “solution” would have gave the victim a windfall that is clearly not contemplated by the statute. As the concurrence so ably put it, “And if the victim lost a $6,000 car and got $6,000 in restitution, she could acquire another $6,000 car. That would leave the victim just where she began: with a $6,000 car and a $12,000 loan. In other words, the restitution award would cover her “damage or loss.” If, on the other hand, the victim got the value of her car plus the unsecured portion of her loan (roughly $12,000) and bought a $6,000 car, she would come out $6,000 ahead.”

The law in this area is fairly well-settled and I’m amazed that trial judges still get this wrong. Fortunately, Tolbert’s able attorneys and the First DCA were able to fix this mistake.

Tampa Restitution Attorney

If you find yourself dealing with restitution as part of your criminal case, give The Bantner Firm a call today! We offer free consultations with board certified criminal trial law attorney Adam Bantner. 813.397.3965

We pray that you never need us, but we’re here for you when you do!

You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

While it’s not always a smart move, legally speaking, you don’t always have to obey the commands of a law enforcement officer. Whether to exercise this right, as with many things, is a discretionary choice and, in most circumstances, it is wise to simply comply.

However, law enforcement sometimes will make unreasonable and illegal requests. In such circumstances, it is perfectly legal to simply walk away and to ignore those commands. Now, that may still get you arrested and you may still have to the best attorney you can to get you out of the pickle (we recommend the The Bantner Firm), but you should eventually be vindicated in your actions.

Resisting an Officer With Violence

Let’s get the easy one out of the way first; it is almost never legal to resist an officer with violence. If an officer is engaged in any legal duty at all, you cannot resist that command, order, arrest, etc. with violence. Even if the arrest is illegal and not based on probably cause, you cannot resist that arrest with violence. Fla. Stat. 843.01 makes resisting with violence a third-degree felony punishable by up to five years in prison. Additionally, it goes without saying that resistance with violence will greatly enhance your chance of getting injured or killed. Just don’t do it.

Resisting an Officer Without Violence

In order to convict a defendant of resisting, obstructing, or opposing an officer without violence pursuant to Fla. Stat. 843.02 the State must prove:

  • (1) The officer was engaged in the lawful execution of a legal duty; and
  • (2) The actions of the defendant resisted, obstructed, or opposed the officer in the performance of that legal duty.

“Legal duty”, as contained in the first element above, includes “(1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a ‘lookout’ during the commission of a criminal act.” There is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. McCollough v. State, FLWSUPP 2612MCCU, (Fla. 10th Cir. Ct. 2017) (internal citations omitted).

McCollough v. State

You may be asking yourself why a blog post on resisting an officer without violence has a picture of a cute kid on the shoulders of her father. Well, in McCollough, the defendant was arrested for resisting without violence for refusing to take his child off of his shoulders at the direction of law enforcement.

Again, this is one of those situation where it probably would have been better to simply take the child down but, the father was perfectly within his rights to refuse to do so. Here’s why:

McCollough was exercising his court-ordered supervised visitation. The supervisors suspected McCollough was about to walk-off with his child. The supervisors alerted law enforcement and they responded to investigate a possible child abduction. However, it was quickly ascertained that an abduction was not occurring or about to occur. At that point, any legal duty of investigation had been concluded.

However, tensions were still relatively high and McCollough was in an agitated state. The officers requested that McCollough put the child down out of fear that the child would fall off his shoulders; but there wasn’t any evidence that they child was in any sort of real danger of an injury occurring. McCollough refused to put the child down and the officers then forced him to do so and arrested McCollough. Only in Polk County.

The appellate court held that “[I]f the instructions (orders) occurred after the officers were aware that no criminal activity was taking place, then Appellant was not detainable and could walk away from the officers. In other words, once any reasonable suspicion of a crime had been eliminated, there was no valid reason to detain the Appellant. At that point, the officers were merely “on the job” and not “performing a legal duty””. As such, the court ruled that the trial court should have granted the motion for judgment of acquittal and dismissed the case. It reversed and remanded the case for the conviction to be set aside and a judgment of acquittal to be entered.

Polk County Criminal Defense Attorney

If you find yourself or a loved one on the wrong side of the law, give board certified criminal trial attorney Adam L. Bantner, II a call today. You can reach us at 813.397.3965 to set up your free consultation at either our Brandon or Tampa office.

You Can’t Say That!

Atticus Finch knew how to make an effective argument. This is a scene from the legendary movie, To Kill A Mockingbird.

Impermissible Arguments by Prosecutors Lead to Reversed Convictions

By: Adam L. Bantner, II

Because the U.S. Constitution requires a criminal defendant to be presumed innocent, that a defendant receive a fair trial, and that a defendant does not have to any burden to prove his own innocence, prosecutors have to be very careful in making their arguments to the jury.

In closing argument, the attorney’s role is to “assist the jury in analyzing, evaluating and applying the evidence.” Cardona v. State, 185 So. 3d 514, 519 (Fla. 2016) (quoting U.S. v. Morris, 568 F. 2d 396, 401 (5th Cir. 1978)). Comments made during closing argument that are intended to inject emotion and fear into the jury are outside the scope of a proper closing argument. Lewis v. State, 780 So. 2d 125, 129 (Fla. 3d DCA 2001); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988). It is improper for an attorney to express a personal opinion about the credibility of a witness during closing argument. Johnson v. State, 801 So. 2d 141, 142 (Fla. 4th DCA 2001) (“It is equally improper for the state to vouch for the credibility of a police officer by arguing that the jury should believe police officers solely because they are police officers.”). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Brinson v. State, 153 So. 3d 972 (Fla. 5th DCA 2015) (quoting Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983).

Should a prosecutor make such an argument, Courts apply the “Lopez Test” when determining whether prosecutorial comments merit a new trial. To warrant a new trial, the comments must either 1) deprive the defendant of a fair and impartial trial; 2) materially contribute to the conviction; 3) be so harmful or fundamentally tainted as to require a new trial; or 4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994) (citing Lopez v. State, 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990)).

Morell v. State, Improper Burden Shifting

In Morell v. State, 26 Fla. L. Weekly Supp. 883a (Fla. 17th Cir. Ct., 2018), Morell was charged with driving under the influence. He performed one field sobriety exercise, horizontal gaze nystagmus, but refused the other exercises and refused to provide a sample of his breath for testing.

In closing arguments, the prosecutor focused her attention almost solely on the defendant’s failure to provide the jury with additional evidence of his guilt. Her statements included:

  • … defendant failed to provide what would be the best evidence in this case.
  • … the defendant said, fine, I will choose not to give the ladies and gentlemen of the jury today the best evidence in this case, which would be his breath.
  • … the State has proven that the only lack of evidence in this case comes from the defendant refusing to provide the breath sample to you all today.

The court held that each of these statements improperly shifted the burden upon the defendant to provide evidence to the jury. As such, it amounted to fundamental error to require reversal of the conviction even without proper preservation of the errors by defense counsel.

Alou v. State, Improper Vouching and Appeal to Passions of the Jury

In another DUI case, the court reversed a conviction because a prosecutor made arguments that effected the defendant’s ability to receive a fair trial. In Alou v. State, 26 Fla. L. Weekly Supp. 869a (Fla. 11th Cir. Ct., 2018), the prosecutor improperly vouched for the credibility of a law enforcement witness and improperly appealed to the sympathies and passions of the jury.

The statements were:

  • Officer Franco is not going to misrepresent the words of this Defendant.
  • Then he almost hit a bus, a bright colored bus. Then he almost hit that bus, again. Members of the jury, what if he didn’t miss?

In this case, unlike in Morell, the defense attorney did his job by properly objecting to the offending statements and moving for a mistrial. While the court did sustain the objections, it never gave a curative instruction to the jury and it denied the motion for a mistrial.

The Circuit Court, sitting in its appellate capacity, ruled that the trial court abused its discretion in denying the motion for a mistrial. As such, the verdict was reversed and the case was remanded to the trial court for a new trial.

There’s a Right Way to Preserve a Juror Challenge

By: Adam L. Bantner, II, B.C.S.

Jury selection is the beginning of your trial. Some believe that a case can be won or lost at jury selection. While I don’t necessarily believe that a trial can be won at this stage, I certainly believe that it can be lost before the first word of testimony is delivered.

As such, if someone is taking their case to trial, whether a criminal or personal injury matter, you need an attorney skilled in trial practice and jury selection. With over 30 trials under my belt, I’ve honed my trial skills more than most attorneys.

In jury selection, we are trying to accomplish two things: 1) get rid of jurors predisposed to rule against your client, and 2) start planting the seeds of persuasion for your case. Successfully fulfilling both of these objectives is more art than science and the scope of this article is not expansive enough to cover the “how-to” on accomplishing these goals. Suffice to say, at this point, a necessary skill to get this done is getting your jurors to speak. Getting a person, who probably doesn’t want to be there in the first place, to open up about who they are, their beliefs, and their life in general, is difficult. However, it is possible and completely necessary to getting a good jury.But what do you do if you find a juror who, to you, is undesirable for service on your jury?

In any trial, counsel has unlimited “cause” challenges. A cause challenge can be utilized whenever a juror has indicated that they can’t do the job as instructed by the court and according to the law. For example, if a juror says that he/she would need to hear testimony from a criminal defendant and he/she would hold it against the defendant should he/she desire to exercise his or her right to remain silent, that juror should be stricken for cause by the court upon motion by counsel. These types of challenges are unlimited because you can’t have an unqualified juror serving on a case.

The other type is “peremptory” challenges. These can be used for any reason not forbidden by law. For example, you can’t use a peremptory against someone for simply being black, for being a woman, for being old, etc. However, if you believe that the court improperly denied a cause challenge, you can use one of your peremptory challenges on that person. Peremptory challenges are limited in number. The number is set by law depending on the type of case being tried.

However, if a judge denies both a cause and peremptory challenge to a juror, certain steps must be taken to ensure that the issue is preserved for appeal. They are relatively simple, but necessary.

First, make the challenge. You can’t appeal a denial if you never asked for the juror to be excused. If the cause challenge was denied but the court allowed you to use a peremptory challenge on that person, you must ask for an additional peremptory challenge. If you don’t, the denial of the cause challenge will not be appealable. The theory is that if the court gives you an extra peremptory to use, no harm no foul because the litigant essentially got what he or she desired anyway.

Finally, if the court denies both the cause and peremptory challenges (or just the peremptory if no cause challenge was made), you must renew the objection before the jury, as a whole, is sworn in to hear the case. Failure to renew the objection will act as a waiver of any previous objections to denials by the court for cause.

In Hernandez v. State, the Second DCA indicated that it would have reversed and remanded for a new trial had the trial lawyer properly preserved the denial of a peremptory challenge. In that case, Hernandez’s lawyer moved to remove a juror for cause because a juror had stated he would have a problem if Hernandez failed to testify. The juror later stated that he would not have a problem. As such, the Court denied the cause challenge.

The Court, improperly, also denied the peremptory challenge made by counsel. The Court unfortunately applied the “cause” standard to a “peremptory” challenge. This was error. However, counsel failed to renew the objection prior to the swearing in of the jury. As such, the District Court of Appeal had to affirm the judgment and sentence of the trial court and did not grant Hernandez a new trial.

As you can see, having a skilled trial attorney is essential to having a fair trial while also preserving any appellate issues that may arise during the trial. Adam Bantner is a board certified criminal trial law attorney in Hillsborough County. Call us today to see how we can help!