Category Archives: Evidence

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.

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.

Judges Get This One Wrong All The Time!

An Excited Utterance Can Be Admissible Even When Self-Serving

By Adam L. Bantner, II

Adam@TampaCrimeAttorneys.com

www.TampaCrimeAttorneys.com

During the course of a criminal trial it is not unfamiliar for a judge to sustain an hearsay objection whenever the hearsay statement is that of the person on trial. This is true even when the statement qualifies for admission under an exception to the hearsay rule. The common refrain from the prosecutor is, “But judge, it’s self-serving. Self-serving hearsay is inadmissible.” This can be enough to persuade the judge. 

However, criminal defense attorneys have a new case with which to arm themselves against this wrong line of thinking. The Fourth District Court of Appeal in Hinck v. State, 43 Fla. L. Weekly D2681c (Fla. 4th DCA 2018) held that so long as the particular requirements of the exception are met, in this case it was an excited utterance, the self-serving nature of the statement will not automatically preclude its admission into evidence; it is but one consideration.

The Excited Utterance Hearsay Exception

Fla. Stat. 90.803(2) allows for the admission of an “excited utterance” when the following criteria is met: [T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. Hayward v. State, 24 So.3d 17 (Fla. 2009). Conspicuously absent is any requirement that the statement not benefit the defendant if the statement is his. 

The confusion comes from the courts’ ability to blend the requirements for the admission of a spontaneous statement and excited utterance. It shouldn’t be done, but an element for the admission of a spontaneous statement is it not be made under circumstances which indicate its lack of trustworthiness. Obviously, you don’t want unreliable evidence to be admitted; but the fact that a person is under the stress or excitement of a startling event is exactly what gives an excited utterance its trustworthiness. If the statement is fabricated, then its not being made under stress or excitement. As such, this requirement is unnecessary for an excited utterance to be admitted. 

State v. Hinck

In this case, Hinck had stabbed a man with whom he met online for a casual sexual encounter. Hinck claimed that he had a change of heart about going through with the act and that the victim of the stabbing had tried to force himself upon Hinck. Hinck claimed to have responded in self defense by using his knife.

Upon coming down the stairs from the hotel room, Hinck stated to the hotel attendant, “I’ve been attacked; I stabbed someone.” This is the statement to which the state objected. The trial court sustained that objected and Hinck was ultimately convicted. 

However, the appellate court reversed the conviction because the statement should have been admitted and such error was not harmless.

Call The Bantner Firm

If you find yourself or someone you love facing a serious felony allegation, you need an attorney who knows his way around the courtroom. Adam Bantner is a board certified criminal trial law attorney helping the accused in Hillsborough County. Call us today for your free consultation. 813.397.3965.

Will a Discovery Violation Earn a New Trial?

What Happens When the State Hides the Ball?

Sometimes intentionally, sometimes inadvertently, the Office of the State Attorney and its prosecutors will fail to provide discovery (evidence that it intends to use at trial), to the defense. When this occurs, we have a discovery violation. The Rules of Criminal Procedure require that the State provides a myriad of evidence within 15 days of the defense’s election to participate in the discovery process. 

The Process

First, you must have a skilled trial attorney who will be able to recognize when a violation has occurred. Adam Bantner is board certified in criminal trial law and has extensive trial experience. He will catch such a violation. 

Typically, a violation is not caught until trial when the Assistant State Attorney, through its witness, introduces evidence (a statement by the defendant, an observation of the witness, etc.) that has not been disclosed to the defense. When this happens, defense counsel must object and request that the statement be stricken and, I would recommend, request a mistrial. Should the court do neither, your attorney should request a Richardson hearing. It’s also important to note that it doesn’t matter whether the ASA was aware of the evidence. They are charged with constructive knowledge of the evidence possessed by their agents, i.e., law enforcement. Rojas v. State, 904 So.2d 598 (Fla. 5th DCA 2005).

Richardson Hearing

At this hearing, which will occur outside of the presence of the jury, the Court will first determine whether the evidence was not disclosed to the defense. Assuming this finding is made, the Court will next determine whether violation was harmless to the defense. This determinate is obviously the more complicated of the two findings that must be made. 

Recently, 15th Circuit Court Judge Harper summarized the determination as follows:

In State v. Schopp, 653 So. 2d 1016, 1019 (Fla. 1995) [20 Fla. L. Weekly S136a], the Florida Supreme Court made clear that “[t]he question of ‘prejudice’ in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial.” (quoting Smith v. State, 500 So. 2d 125, 126 (Fla. 1986)). In conducting this analysis, the court should analyze whether the defense’s “trial preparation or strategy” would have been materially different had the defendant the benefit of the missing discovery. Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006) [31 Fla. L. Weekly S114a]. “Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant.” Id. (quoting Schopp, 653 So. 2d at 1020). Only when the reviewing court “can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.” Id. (quoting Schopp, 653 So. 2d at 1021). 

Shannon v. State, FLWSUPP 2606SHAN (Fla. 15th Cir. Ct. 2018).

Will I Get a New Trial

This is the million dollar question. However, it is very fact specific. In Shannon, a new trial was not granted where evidence of defendant’s statement that “I’m going to fucking kill him” was not disclosed. The Court held that this statement was sufficiently similar to the properly admitted statement of “I’m going to go get my gun” so that the defense was not prejudiced in its preparation. Additionally, the defense was able to cross-examine the detective regarding the undisclosed statement and its strategy would not have changed had the undisclosed statement been disclosed. 

Expert Criminal Trial Representation Matters!

As you can see, trial work can be complicated. If you or your friends/family ever find yourself on the wrong side of a criminal allegation, don’t put your freedom in the hands of an inexperienced practitioner. Call The Bantner Firm today at 813.397.3965 to set up your free consultation!

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Improper Bolstering by State Causes Conviction to Be Overturned

 

If a person is serious about taking their case to trial, they need to be represented by an attorney with trial experience and a depth of knowledge of the evidence code. As a recent case demonstrates, it can be critical to the success or failure of any particular action.

Improper Bolstering

In Lazarro v. State, 43 Fla. L. Weekly D2265h (Fla. 5th DCA 2018), Lazarro was accused of taking a former landlords property and selling it to make up for the landlord’s failure to return a security deposit. Obviously, the case came down to the credibility of the witnesses. Was the jury going to believe the landlord’s testimony that Lazarro stole the property and sold it without permission or Lazarro’s testimony that the property was given to him by the landlord?

Lazarro had going against him the fact that he was a five-time convicted felon. Because he took the stand to testify on his behalf, this fact properly became known to the jury. The was no evidence that the landlord possessed any convictions that would be admissible to the jury. In its holding, the Court essentially stated that while it was proper to comment on Lazarro’s convictions as relevant to his ability to tell the truth (i.e., his credibility), it was improper for the prosecutor to bolster the landlord’s credibility by commenting on his lack of convictions. Because the credibility of the witnesses was central to the decision by the jury, the Court held that Lazarro deserved a new trial.

Why The Right Attorney Matters

Had Lazarro’s attorney failed to object, the conviction most likely would have stood. Errors in evidence admission or argument, generally speaking, only warrant a reversal in cases of fundamental error. Most evidence/argument errors are not fundamental. A person should not trust their freedom to an attorney that cannot recognize when an improper argument is being made or inadmissible evidence is about to be proffered. The Bantner Firm and board certified attorney Adam Bantner possess the necessary education, training and experience to make sure that your case is given the best chance of success!

Call us today at 813.397.3965 to schedule your free consultation!

 

That Admission Might Not Be Used Against You

The Corpus Delecti Rule

Florida is one of a few jurisdictions where the “corpus delecti” rule still applies to the benefit of criminal defendants. In a nutshell, “The rule provides that before an admission may be allowed into evidence, the State has the burden of offering direct or circumstantial evidence independent of the admission that establishes the corpus delicti of the crime charged.” State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). The corpus delecti is substantial evidence tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.

As Applied to Juvenile Possession of a Firearm

The Second DCA has applied this rule to a juvenile’s possession of a firearm. Essentially, it is illegal for a juvenile to simply possess a firearm, with a few exceptions, and entirely illegal for a person under 24-years-old to possess a firearm if they have been previously adjudicated delinquent to a charge that would have been a felony if charged as an adult. An element of either charge is actual possession of the firearm.

In A.P. v. State, 43 Fla. L. Weekly D1508a (Fla. 2d DCA 2018), the defendant was charged with such possession. However, the weapon was found on the floor of a car that was jointly occupied by A.P. and at least one other individual. As such, it was your classic constructive possession scenario. The State failed to produce any evidence of possession by any of the individuals such as fingerprints, DNA, or statements by a co-defendant. However, A.P. did admit to ownership of the firearm.

The Court (Hillsborough Judge Twine Thomas) allowed the admission into evidence. The Second DCA indicated that this was in error:

“The evidence here showed that A.P. and two passengers were together in the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the front passenger seat. We have repeatedly held that mere proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession. See K.A.K, 885 So. 2d at 407-08. Thus, the only independent proof remaining to support any of the inferences necessary to establish constructive possession is A.P.’s admission. This brings us full circle to Ras, which, as stated above, teaches us that this will not do. See Ras, 610 So. 2d at 25; see also Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant’s conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant’s confession).”

As such, while it is certainly best to simply abide by the law and, should you fail there, to not say anything without an attorney present, it is possible to avoid a conviction by properly excluding from evidence an admission using the corpus delecti rule to your advantage.

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If you, a friend, or family member has been charged with a crime, give your board certified attorney a call at 813.397.3965 to see how we can help!

Use of Video and Surveillance Video in Trial

By: Adam L. Bantner, II, Board Certified Criminal Trial Attorney

             In modern society, it is not uncommon for people’s actions to be recorded either with or without their knowledge. License plate readers, red light cameras, public space cameras purchased by local, state and federal agencies, bus and taxi cab videos, police body cameras, and the cell phones of millions of individuals all have the capability to record portions of our lives. As such, criminal practitioners (and trial attorneys in general) must be familiar with the foundational requirements for admission of such evidence. This article will attempt to cover the basics of video evidence admissibility.

            As an initial consideration, the recording must be relevant. Fla. Stat. § 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact.” [1] In order to meet this burden, the proponent of the evidence must simply identify the fact for which it is offered to prove and that fact must be relevant to the litigation. For example, a convenience store video depicting the commission of a robbery may be relevant because it tends to prove the identity of the perpetrator as the defendant. This is the simple part and, in my experience, is usually not challenged.

            Second, videos are admissible on the same basis as still photographs.[2] In other words, the proponent of the video must lay a foundation that the video fairly and accurately represents a material fact or issue. A common misconception is that the person who took the video must testify in order for it to be admissible; this is simply incorrect. While the person that took the video will certainly have the ability to testify that it fairly and accurately depicts the events that were captured, anyone who witnessed the events recorded have the competency to lay the foundation for the recordings admission into evidence. In H.A. v. State[3], the drugstore employee authenticated the surveillance video. This method of introducing such evidence is known as the “pictorial testimony” theory of admissibility.[4]

            Additionally, video evidence may be admissible under the “silent witness” theory.[5] Under this theory, the evidence may be admitted when the trial court finds it reliable, after having considered the following:

(1) evidence establishing the time and date of the photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and

(5) testimony identifying the relevant participants depicted in the photographic evidence.[6]

In Lerner v. Halegua,[7] the proponent of video failed to meet its burden under either theory. In Lerner, Mr. Halegua argued that surveillance video depicting Mr. Lerner spreading bullets outside of the door to a Mr. Winston’s[8] condominium should be admitted under either theory. However, the court found and held:

Mr. Winston did not personally observe the events depicted on the surveillance videos or the photos. The record here reflects that Mr. Winston had no responsibility for the operation, placement, or maintenance of the videocamera in question, and he had no direct knowledge regarding the procedure for retrieving or copying those portions of a video record that might be pertinent to the investigation at issue here.

 

In the absence of the photos admitted over Mr. Lerner’s objection, the evidence at the hearing in the civil case fell short of the “clear and convincing” showing necessary to support the dismissal of Lerner’s claims and defenses for fraudulent or unconscionable litigation misconduct.[9]

 

            In conclusion, the admission of video evidence is relatively simple. If there is a witness that observed the events recorded, simply lay the foundation through that witness. If there is not such an eyewitness, you can still admit the evidence under the “silent witness” theory by establishing the relevance and reliability of the video using the factors indicated in Wagner.[10]

[1] Fla. Stat. § 90.401 (2016)

[2] Charles W. Ehrhardt, Florida Evidence (2009), Section 401.3

[3] H.A. v. State, 24 So.3d 752 (Fla. 3d DCA 2009)

[4] Wagner v. State, 707 So.2d 827, 829 (Fla. 1st DCA 1998)

[5] Id. at 831

[6] Id.

[7] Lerner v. Halegua, 154 So.3d 445 (Fla. 3d DCA 2014)

[8] Winston was not directly involved with the litigation between Mr. Lerner and Mr. Halegua.

[9] Id. at 447-48.

[10] Wagner v. State, 707 So.2d 827, 831 (Fla. 1st DCA 1998)