Tag Archives: Trial Attorney

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.

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.

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!

Stay in Your Lane: The Role of the Judge

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

“The judge has five basic tasks. The first is simply to preside over the proceedings and see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts in the case, the judge gives the jury instructions about the law that applies to the case and the standards it must use in deciding the case. Fourth, in bench trials, the judge must also determine the facts and decide the case. The fifth is to sentence convicted criminal defendants.” Role of the Judge and Other Courtroom Participants, The Judge, http://www.flnd.uscourts.gov/role-judge-and-other-courtroom-participants, June 6, 2018.

Additionally, Canon 2A of the Florida Code of Judicial Conduct states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

When a judge breaks from these parameters, the courtroom goes from a place of justice to an inquisition. Additionally, it will cause whatever work was done in that courtroom to be reversed on appeal. A recent example is Parr v. State, 43 Fla.L.Weekly D1161a (Fla. 4th DCA 2018).

Parr was placed on probation for on two counts of Dealing in Stolen Property and two counts of False Information to a Secondhand Dealer. In November 2015 his probation was violated, and a hearing was conducted in November 2016. After plea negotiations broke down, and facing up to 40 years in prison, Parr entered an admission to violating his probation and a sentencing hearing as held.

At the sentencing hearing, Parr asked for a modification of probation for him to be placed in a substance abuse treatment facility and he called his grandfather as a witness. Because Parr had indicated that most, if not all, of his victims were family, he wanted to show the Court that his family wanted him to receive help and not incarceration. As soon as Parr finished his direct examination of his grandfather, the Court, and not the prosecution, begin cross-examining the grandfather. The Court began by asking whether Parr was a danger to the community and the grandfather responded, “Absolutely not.” The following examination ensued:

THE COURT: Two other – two other grand thefts, are you familiar with those?

GRANDFATHER: You’ll have to tell me what they are.

THE COURT: I don’t know, I’m asking you. Do you know what they are?

THE DEFENDANT: I don’t – one was – one was —

THE COURT: I’m not asking you, I’m asking [your Grandfather].

GRANDFATHER: Sir, I don’t know.

THE COURT: Cause you’re coming into my courtroom and you’re saying he’s not a danger to anyone else.

GRANDFATHER: I – I don’t think –

THE COURT: He’s never victimized anybody else?

GRANDFATHER: No, not that I know of.

THE COURT: Not that you know of.

GRANDFATHER: Uh-huh.

THE COURT: Is your lack of knowledge intentional or accidental in that regard?

GRANDFATHER: My lack of knowledge is because –

THE COURT: Are you keeping your head in the sand –

GRANDFATHER: I have no knowledge of that.

THE COURT: As far as whether he’s violated anyone else’s rights?

GRANDFATHER: I do not know that he has.

THE COURT: Okay. But is that intentional on your part or are you just accidental – are you – are you –

GRANDFATHER: That’s the way I feel.

THE COURT: Did you inquire of him in that regard?

GRANDFATHER: That’s –

THE COURT: Have you looked into it?

GRANDFATHER: Uh, not intentionally look into it.

THE COURT: Because you just told me he’s not a threat to anybody else.

GRANDFATHER: I do not believe him to be a threat to anyone.

THE COURT: Okay. Because you don’t know if he’s – he’s violated anyone else’s rights.

GRANDFATHER: Not – it has not come to my attention that he has.

THE COURT: How about assault?

GRANDFATHER: No.

THE COURT: Improper exhibition of a weapon?

GRANDFATHER: No.

THE COURT: That is no, you don’t know anything about it.

GRANDFATHER: He’s not done that.

THE DEFENDANT: No, it’s –

THE COURT: It’s on his record. I’m looking at his scoresheet.

GRANDFATHER: A gun?

THE COURT: I’m looking at his scoresheet. It’s on his record.

GRANDFATHER: I don’t know anything about a gun. I have guns, but I don’t know that –

THE COURT: I don’t know that it’s a gun –

GRANDFATHER: He’s every had any –

THE COURT: It says weapon, it doesn’t mean it’s a gun. Resisting a merchant, you’re not a merchant, are you?

GRANDFATHER: No sir.

THE COURT: Resisting an officer without violence, are you aware of that?

GRANDFATHER: No sir.

THE COURT: Driving while license suspended, theft – another theft charge. You’ve told me you don’t know of any other victims other than your family.

GRANDFATHER: That’s correct.

THE COURT: Okay. And he’s violated your family’s rights because of what, a drug problem?

GRANDFATHER: No, I don’t know that he’s ever been on drugs.

THE COURT: So you don’t know what motivates him to do these things?

GRANDFATHER: I think he just thought he could get away it and, uh –

THE COURT: So but what – what –

GRANDFATHER: It was proven not so.

THE COURT: We know in our – in the world that we live in, people do things for different reasons. Most criminals have drug problems and they violate people’s rights, they steal from them to get money to get drugs or to buy whatever they want. How do you – who is he – what does – what does he do? How is it – he just violates the rights of people in your family? Does he hate all of you? What – what’s the situation? I don’t get it.

GRANDFATHER: I just thought it was – I think he thought it was an easy way to get things so he could, uh, prepare or to provide for himself.

THE COURT: And he limits it to your family in that —

GRANDFATHER: The occasions when he’s done that have been limited to myself, uh, my live-in girlfriend and – and his mother.

THE COURT: All right. Those are the only questions I have. Does the State have any additional questions?

The appellate court held that this questioning went too far and ultimately reversed the sentence and remanded the case for a resentencing before a different judge.

            In so doing, the Court quoted from State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939): “This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.”

That language may be 80-years-old, but it cannot be said better and educates both the bench and bar to remain vigilant that all parties simply do their job.