Florida Criminal Case Law Update (September 26, 2022 - September 30, 2022) — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast

CASE LAW SUMMARIES

Florida Criminal Case Law Update (September 26, 2022 – September 30, 2022)

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OVERVIEW – 7 Cases

1 – Florida Supreme Court Cases
4 – First DCA Cases
0 – Second DCA Cases
1 – Third DCA Cases
1 – Fourth DCA Cases
0 – Fifth DCA Cases

Case #1 – Truehill v. State, SC20-1589 (Fla. Sup. Ct.)(September 29, 2022)

Truehill is a 3.851 ineffective assistance of counsel after a death sentence case.
Mr. Truehill was convicted of first degree murder and kidnapping for the killing of a man after escaping prison.
Mr. Truehill and two accomplices escaped a Louisiana prison and made their way down to Miami.
Along the way, they committed several robberies.
While in St. Augustine, they kidnapped, robbed and stabbed a man to death.
When they were ultimately apprehended in Miami, law enforcement found various items in both the motel room where Mr. Truehill stayed and the vehicle he was in that tied him to the robberies and the murder of the victim in St. Augustine.
A jury found Mr. Truehill guilty and recommended death and the trial court sentenced Mr. Truehill to death.
Mr. Truehill’s conviction and sentence were affirmed on direct appeal and he filed this 3.851 alleging several grounds of ineffective assistance of counsel.
In an ineffective assistance of counsel claim, a defendant must establish the two Strickland prongs. First, that counsel’s performance was deficient, and Second, that the defendant was prejudiced by the deficient performance in that the result of the proceeding would have been different had counsel not been deficient.
Mr. Truehill first argued that counsel was deficient during voir dire by failing to uncover racial bias in the jury and failing to ask specific questions to expose racial bias.
- However, the Florida Supreme Court noted trial counsel’s testimony that his strategy was to avoid questions about race because these crimes were committed based on opportunity, not race, and questions about race can be damaging.
- The Court found this to be a logical strategic decision.
Mr. Truehill also argued that his counsel was ineffective for failing to individually question two jurors about their views on the death penalty.
- However, the panel was questioned as a group and these two jurors never raised their hands indicating they had strong opinions about the death penalty.
- Therefore, it was not deficient to not single out these two jurors.
Mr. Truehill also argued that his counsel was deficient for failing to ask the right questions to the jury panel during voir dire about whether they would meaningfully consider mitigation during the penalty phase.
- But the Court noted that defense counsel testified that his questions about mitigation were well thought out and his specific reasons for not asking direct questions about certain mitigators was sufficient.
Mr. Truehill next argued that his counsel was deficient for failing to object to the prosecutor’s comments in opening and closing arguments.
- In opening, the prosecutor claimed that Mr. Truehill attacked a witness and took her purse.
  - However, the evidence did not ultimately support this statement.
  - But, the Florida Supreme Court noted that, “Opening remarks are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence.”
  - The fact that such testimony is not ultimately elicited at trial does not render the initial comments objectionable.
  - Therefore, because the comment was not objectionable, defense counsel was not deficient for failing to object.
- In Closing, the prosecutor described Mr. Truehill as the hatchet man in the attack on one of the surviving victims.
  - Mr. Truehill claimed that the victim failed to identify him as the person who caused her injuries.
  - However, the Florida SUpreme Court found this to be a reasonable conclusion drawn from evidence that MR. Truehill was consistently seen wielding a knife during the various robberies and the victim’s testimony that Mr. Truehill came at her with a knife.
- Mr. Truehill next argued that his counsel was ineffective in cross examining and preparing various witnesses.
  - However, the Florida Supreme Court held that counsel was not deficient because there were strategic reasons for not cross examining the witnesses on certain topics, which included the possibility of bolstering the witness’ in court identification and bolstering the DNA evidence.
  - The Court also found that Mr. Truehill failed to show he was prejudiced because the evidence of guilty was strong which included DNA evidence and various evidence of the crimes found in the motel he was staying at and the vehicle he had been in.
  - The Court also found that Mr. Truehill failed to establish how defense witnesses were inadequately prepared by defense counsel and even if they had been inadequately prepared, how that prejudiced Mr. Truehill.
  - In fact, the Court noted that the testimony at the evidentiary hearing for several of the witnesses was substantially the same as the testimony elicited during the penalty phase.
- Mr. Truehill next argued that counsel was deficient for failing to call the mitigation specialist that was hired and failing to provide her with necessary resources.
  - However, the Court noted counsel’s testimony at the evidentiary hearing that there were no resource constraints placed on the mitigation specialist and that the specialist did not offer to be present during trial.
- Mr. Truehill next argued that counsel was ineffective for failing effectively challenge DNA evidence.
  - Here, the Court held that even if the DNA evidence was wholly excluded, there was no reasonable probability that the jury’s guilty verdict would have been different.
  - Some of that evidence included video evidence of Mr. Truehill using the murder victim’s ATM card 15 minutes after the victim was last seen, a bloodstained washcloth, a bloodstained knife, and the victim’s bankcard receipt was found in the stolen truck linked to Mr. Truehill, the victim’s wallet and other evidence was found in Mr. Truehill’s motel room, and more.
- Mr. Truehill next claimed the trial court erred in finding no Giglio violation.
  - To establish a Giglio violation, a defendant must demonstrate that:
    - 1) the testimony given was false,
    - 2) the prosecutor knew the testimony was false, and
    - 3) the statement was material.
  - A statement is considered material under Giglio if there is a reasonable probability that the false evidence may have affected the judgment of the jury.
  - Mr. Truehill alleged that a Giglio violation occurred because the government failed to disclose new FDLE DNA procedures that could have changed the interpretation of the DNA evidence.
  - However, the Florida Supreme Court found that Mr. Truehill failed to establish the first Giglio requirement that the testimony was false.
There is no case law that holds that the lack of testimony satisfies the Giglio requirements.
And even if the testimony was false, the Court found that Mr. Truehill failed to show the omitted testimony was material and there was no reasonable likelihood of a different verdict.
Mr. Truehill next argued that new MIX 13 studies showing inconsistencies in DNA interpretation was newly discovered evidence.
To establish a claim of newly discovered evidence, a defendant must satisfy the two Jones prongs:
First, the evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known of it by the use of diligence.
Second, the evidence must be of such a nature that it would probably produce an acquittal or retrial.
Here, the Court determined that trial counsel was aware of inconsistencies in DNA interpretation, which was the underlying concept of the MIX 13 studies and therefor it does not constitute newly discovered evidence.
Furthermore, at best, this evidence would have slightly undermined the mixed, low-level DNA evidence, but would not have led to an acquittal or retrial.
Mr. Truehill next argued that the trial court erred by denying an evidentiary hearing on several grounds of his 3.851 motion.
An evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination.
The Court held that his argument failed because on one count, he did not provide an legal basis or explanation as to why a change of venue motion would have been granted and on another count he did not raise that issue on direct appeal
On a third count where the trial court denied without an evidentiary hearing, Mr. Truehill claimed his sentence was disproportionate because his co-defendants got life.
However, a claim of relative proportionality fails where there are purely legal reasons for the more lenient punishment of a co-defendant.
In this case, one co-defendant pled guilty in exchange for a life sentence instead of going to trial and the other co-defendant’s death sentence was vacated because he made a deal with law enforcement for a life sentence if he led them to the victim’s body.
Because the co-defendant’s lesser sentences had no connection to aggravating and mitigating circumstances, the relative proportionality claim fails.
Mr. Truehill next argued cumulative error, however, because the Court found no individual errors, there can be no cumulative error.
Next, Mr. Truehill petitioned the Court for a writ of habeas corpus based on his deficient performance of counsel claim and proportionality claim.
However, his federal constitutional claims fail because he was unable to establish how any federal claims differed from the standard applied on direct appeal.
Case Affirmed.

Case #2 – Herring v. State, No. 1D20-0861 (Fla. 1st DCA)(September 28, 2022)

Herring is a probation revocation case out of Liberty County.
Mr. Herring was sentenced to prison followed by probation for DUI Manslaughter.
He completed his prison sentence and began a four year probation term.
Mr. Herring violated his probation by failing to report and testing positive for illicit substances.
He entered a written admission and the trial court found that his violation was “blatant” and he was not a good candidate for probation.
Mr. Herring appealed arguing that the trial court committed a sentencing error because there was insufficient evidence to support the trial court’s finding that his violation was “blatant.”
The 1st DCA first noted that Mr. Herring’s argument was not preserved because he failed to raise it at the trial court level.
Sentencing errors may not be raised on appeal unless the appellant objected to the error at the time of sentencing or timely filed a 3.800(b) motion.
Mr. Herring did neither.
The Court also determined that this was not a legal finding, but only a passing comment by the trial court.
Case Affirmed.

Case #3 – Jordan v. State, No. 1D22-2960 (Fla. 1st. DCA)(September 27, 2022)

Jordan is a Motion to Withdraw by the public defender case.
Ms. Jordan was appointed an assistant public defender in March 2022.
That PD engaged in discovery, twice announced that Ms. Jordan was ready for trial and refused to waive speedy trial.
The trial court specially set the case for trial within speedy trial and a week before the trial was scheduled to begin, the PD moved to withdraw based on a conflict of interest.
The conflict of interest stemmed from the public defender’s office representation of a witness in the case several years prior.
The Assistant Public Defender had known about the conflict of interest since representation began.
§27.5303 controls public defender conflicts of interest.
27.5303(e) sets out a process for evaluating potential conflicts and assigns responsibilities to the public defender and §27.5303(1)(a) states the court shall deny the motion if the court finds the grounds are insufficient or the asserted conflict is not prejudicial to the indigent client.
Here, the trial court denied the motion to withdraw finding that the public defender failed to establish a conflict and even if it had, the PD failed to take reasonable steps to explore alternatives to withdrawal, as is required under 27.5303(1)(3)(1).
Ms. Jordan filed a petition for writ of certiorari and the 1st DCA first determined whether it had jurisdiction to hear the case.
The District Court has jurisdiction to review final orders and specific non-final orders designated by the Florida Supreme Court.
The trial court’s order was not final because it did not act as an end to the judicial labor in the cause.
The order was not one of the appealable non final orders in the appellate rules either.
Because the district court did not have jurisdiction, it is limited to the stringent review standard of common law certiorari.
To obtain relief by certiorari, the order on review must depart from the essential requirements of the law and cause harm that cannot be corrected on post judgment appeal.
The petition for writ of certiorari must show how the error below cannot be corrected on post judgment appeal.
Here, Ms. Jordan did not make any argument that the error could not be corrected on post judgment appeal.
Therefore, the 1st DCA did not have jurisdiction to review the trial court’s order denying the public defender’s motion to withdraw.
Case Dismissed.

Case #4 – Parrish v. State, No. 1D21-1435 (Fla. 1st DCA)(September 28, 2022

Parrish is a sex offense sentencing case out of Escambia County.
Mr. Parrish was convicted by a jury of Sexual battery with force, battery and false imprisonment.
Mr. Parrish was 16 years old.
At sentencing, he requested a downward departure under 921.0026(2)(d) because he required specialized treatment for a disorder.
The State opposed a downward departure because of Mr. Parrish’s extensive criminal history, the escalating nature of his criminal conduct and his high risk of reoffending.
The trial court denied the request for downward departure stating that whether he qualified under the statute or not, the trial court did not believe departure was appropriate.
The trial court sentenced Mr. Parrish to 30 years in prison on the sexual battery count, 5 years concurrent on the false imprisonment count and time served on the battery count.
The trial court did not mention on the record whether Mr. Parrish was entitled to sentence review under §921.1402(2)(d).
Mr. Parrish filed a 3.800(b)(2) motion to correct sentence arguing that he is eligible for judicial review after 20 years under 921.1402(2)(d).
The 1st DCA first noted that Mr. Parrish does appear to be eligible for review after 20 years under 921.1402(2)(d).
However, 921.1402 does not provide for any requirement that the trial court announce eligibility under the statute.
Rather, 921.1402(3) requires the Department of Corrections to notify Mr. Parrish of his eligibility for sentence review.
Therefore, a trial court has no affirmative duty to notify a defendant at sentencing of his eligibility for judicial review under 921.1402.
The 1st DCA also declined to review the trial court’s refusal to impose a downward departure stating, “this Court has held that it lacks authority to review a sentencing court’s decision not to grant a departure sentence,” citing its prior decision in State v. Wilson.
Case Affirmed in part; Dismissed in part.

Case #5 – T.T.W. v. State, No. 3D21-1045 (Fla. 3rd DCA)(September 30, 2022)

T.T.W. is a Juvenile adjudicatory hearing case involving Zoom testimony.
The trial court allowed, over T.T.W.’s objection, a police officer to testify at the juvenile delinquency hearing via Zoom without making any case-specific finding of necessity.
Based on the 3rd DCA’s recent decision in J.T.B. v. State, holding that the failure to render case-specific findings of necessity justifying conducting the juvenile adjudicatory hearings remotely results in denial of due process, the Court found that no case specific findings were rendered here, therefore reversal was necessary.
Case reversed and remanded for a new adjudicatory hearing.

Case #6 – Johnstone v. State, No. 4D21-1411 (Fla. 4th DCA)(September 30, 2022)

Johnstone is a stalking case out of Okeechobee County.
Mr. Johnstone was engaged in an ongoing feud with his neighbors.
Mr. Johnstone and his neighbors shared an access road and the neighbors took issue with Mr. Johnstone using it because they had no other way to get to the main road, but he did.
However, the access road was an easement and both neighbors had equal legal rights to use it.
As their dislike for each other grew, Mr. Johnstone began intentionally annoying his neighbors.
He would do things like display signs saying, “Stupid people live here” with an arrow to the neighbors property, allow broken rock to scatter on the easement road, dispose of debris on the edge of the public road near the neighbor’s mailbox, pour a mixture of a substance that smelled like urine feces and odor upwind from the neighbors, burn garbage, park a running lawn mower on Christmas day at 7:00 am, shower outside in his underwear, stare at the neighbors while holding a machete and filming the neighbors.
The neighbors called law enforcement and Mr. Johnstone was arrested for stalking.
The stalking statute, §784.048(2) requires the State to prove that the defendant willfully, maliciously, and repeatedly followed, harassed, or cyber stalked another person.
784.048(1)(a) defines harass as to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
784.048(1)(b) defines course of conduct as a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose and does not include constitutionally protected activity such as picketing or other organized protests.
In this case, Mr. Johnstone moved for judgment of acquittal arguing there was no competent substantial evidence to support the conviction and that the Court should recede from Johnstone I, to the extent it controls in this case.
In Johnstone I, Mr. Johnstone was found in violation of probation based on the stalking arrest that is at issue here, in Johnstone II.
In Johnstone II, the trial court denied the JOA and Mr. Johnstone appealed to the 4th DCA.
On appeal, the 4th determined that its prior decision in Johnstone I, which involved violation of probation, was not controlling because there was a different trier of fact, different evidentiary record, different standard of proof and different standard of review.
Therefore, the Court held that it is not bound by that decision and therefore the conditions are not present to revisit Johnstone I en banc.
The Court then summarily affirmed the conviction without analysis.
However, Judge Artau did give a lengthy, reasoned dissent.
Justice Artau believes that the 4th DCA erred in deciding Johnstone I and again here in Johnstone II.
Judge Artau discussed how the majority misinterpreted the stalking statute by overlooking the substantial emotional distress and no legitimate purpose requirements of the statute.
And Judge Artau believes the majority’s interpretation of the stalking statute jeopardizes the activities of law abiding citizens.
He also believes that the rule of lenity requires that the statute be strictly construed.
In this case, the judge did not believe that the State proved more than one act that satisfied the statute.
Whether an act causes substantial emotional distress is guided by an objective standard, not subjective.
So the question is whether a reasonable person would have substantial emotional distress under these facts.
Judge Artau noted that Mr. Johnstone did not make any overt threat with the machete and there was a legitimate use of the machete to clear brush on his property.
Mere irritation, annoyance, embarrassment, exasperation, aggravation and frustration, without more, does not equate to substantial emotional distress.
The judge noted that nothing in the stalking statute prevents nusances from occurring on or around one’s property.
And nothing in the stalking statute prevents a neighbor from filming or photographing what can be seen from one’s property.
And in fact, the complaining neighbors had surveillance cameras on their property, so they would be in violation of the statute along with every other Floridian who has security cameras on their property.
The Judge also believed that the acts proven by the State had a legitimate purpose, including maintaining his property, taking videos and pictures to document was could be publicly seen, and walking his dog.
Judge Artau concluded by urging the court to recede en banc from Johnstone I and to reverse this case, Johnstone II.
The Judge noted that the decisions have created an interdistrict conflict with the 1st DCA and 2nd DCA, which have held that similar conduct is not sufficient to support a stalking conviction.
However, as this was only a dissenting opinion, as of now, the law of the land in the 2nd DCA is that actions like Mr. Johnstone’s can support a stalking conviction.
Case Affirmed.