Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In many cases in which an individual is charged with committing the crime of aggravated battery, the weapon that is used is a knife or a gun.  However, it is also possible to commit aggravated battery using a car.

          In the case of Rosa v. State of Florida, the Third District Court of Appeal stated that in order to convict someone of aggravated battery who rams his vehicle into another vehicle, the prosecutor must first prove beyond a reasonable doubt that the occupants of the rammed vehicle were jostled, injured, had to brace themselves for protection against the impending impact, or were moved about within the vehicle during the crash.

          In the Rosa case, police were led on a high-speed chase following a reported armed robbery.  The car that the police were chasing ultimately crashed against both a guardrail and a patrol car.  The officer driving the rammed patrol car was unbuckling his seat belt when he saw the getaway car traveling in reverse.  The resulting impact damaged the bumper of the patrol car, cracked a turn-signal light, and caused a strobe light to fall off the dashboard.  The impact also caused the door of the patrol car to strike another officer which resulted in that officer's arm and shin area being injured.

          The court of appeals concluded that because no evidence was presented that the officer inside the damaged patrol car was jostled, injured, moved, or had to brace himself in order to protect himself against the impact of the getaway vehicle, the driver of the getaway vehicle was not guilty of aggravated battery.

• Print
• Comments
• Trackbacks

          In the case of C.A.C. v. State of Florida, the Second District Court of Appeal was asked to decide whether a fork is a deadly weapon in a case in which the accused individual was charged with committing the crime of aggravated battery.

          The accused, who was ten years old, stabbed another child two or three times in the back with a fork which resulted in the other child having swelling, scratches, and puncture marks.  The child who was stabbed did not receive medical treatment for his injuries.

          The appellate court first had to determine if the victim in C.A.C.'s case suffered great bodily harm since a person commits aggravated battery if he causes great bodily harm while committing the crime of battery.  The appellate court ruled that because great bodily harm is more than simply moderate harm such as mere bruising, the victim in this case did not suffer great bodily harm.

          However, the court still had to decide whether the fork that was used in this case qualified as a deadly weapon since a person can also commit aggravated battery if he uses a deadly weapon.  The court first noted that forks are designed to be used for eating and not for causing great bodily harm.  Furthermore, the fork in this particular case did not cause great bodily harm; it instead caused swelling, scratches, and puncture marks which did not require medical treatment.

          Accordingly, the appellate court found that the evidence was insufficient to convict C.A.C. of aggravated battery.  However, it was sufficient to convict him of simply battery.

• Print
• Comments
• Trackbacks

          A person can commit the crime of aggravated battery in one of three ways in Florida.  If a person, while committing the crime of battery: 

          1.  Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement of another person; or

          2.  Uses a deadly weapon; or

          3.  If a person who was the victim of a battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant, then the offender may be guilty of the crime of aggravated battery. 

          The crime of aggravated battery is a second-degree felony which is punishable by up to 15 years in prison.

          However, deciding whether someone's actions actually constitute the crime of aggravated battery can sometimes be quite difficult  as the case of Nguyen v. State of Florida illustrates.

          In that particular case, Mr. Nguyen was charged, among other things, with the crime of aggravated battery causing great bodily harm, permanent disability, or permanent disfigurement to the victim or, alternatively, by using a deadly weapon which happened to be an electric stun gun.

         The First District Court of Appeal began its analysis with the observation that proving great bodily harm requires more than slight, trivial, minor, moderate, or some harm.  In Mr. Nguyen's case, the victim testified that it hurt when she was shot with the stun gun and that it caused her to lie down.  In addition, a police officer testified that he saw burn marks on the victim after he arrived on scene.  Significantly, however, no evidence was presented that the victim required medical treatment for her burns or that she had any lasting negative effects or scars from being shot with a stun gun.  The Court of Appeal therefore concluded that there was not enough evidence to convict Mr. Nguyen of the crime of aggravated battery by causing great bodily harm.

          However, that did not end the Court's analysis since it still had to decide whether Mr. Nguyen was nonetheless guilty of committing the crime of aggravated battery because he had used a deadly weapon.

          The Court defined a "deadly weapon" as:

          1.  Any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm; or

          2.  Any instrument likely to cause great bodily harm because of the way it is used during a crime.

          In Mr. Nguyen's case, the appellate court ruled that the prosecution failed to present any evidence that a stun gun qualifies as a deadly weapon by its ordinary use.  Additionally, the evidence was insufficient to prove that the stun gun used by Mr. Nguyen constituted a deadly weapon based upon the way that he used it against the victim.  Accordingly, there was also not enough evidence to convict Mr. Nguyen of the crime of aggravated battery for using a deadly weapon.

• Print
• Comments
• Trackbacks

          In 2007, the Georgia Supreme Court ruled as unconstitutional a Georgia law that prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate. 

          The case, Mann v. Georgia Department of Corrections, arose when Anthony Mann, a registered sex offender in Georgia, filed a lawsuit asking that the law mentioned above be declared unconstitutional because it authorized the taking of his home without his being financially compensated in violation of both the United States Constitution and the State Constitution of Georgia. 

          Mann also asked that this law be declared unconstitutional because it prohibits registered sex offenders from working at any business in Georgia that is located within 1,000 feet of a church, school, or child care facility.  He argued that this law likewise authorizes the unconstitutional taking of his business, just as it does his home, without his being financially compensated.

         The Georgia Supreme Court did ultimately declare that portion of the law unconstitutional which prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate.  However, it did not rule unconstitutional that portion of the same law which prohibits registered sex offenders from working at businesses located within 1,000 feet of a church, school, or child care facility.

• Print
• Comments
• Trackbacks

          In the courts of Florida, heat of passion is recognized as a defense to the crimes of first and second-degree murder.

          Heat of passion is a mental state provoked by fear, rage, anger or terror that, combined with adequate provocation, is a defense to the crimes of first and second degree murder. Provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection.

          An example of someone who relied upon the heat of passion defense occurred in the case of Villella v. State of Florida.  In that case, Mr. Villella, who was charged with the first-degree murder of his wife, argued that the stabbing of his wife was not premeditated but was instead a crime of passion committed after he learned that his wife was having an affair and intended to leave him and take their child with her.

          The jury heard Villella's two tape-recorded interviews with the police in which he told them that he suspected his wife was having an affair because she was making and receiving unusual telephone calls.  He also told the police that she was staying out late drinking and was, on one of those occasions, driven home by another man.  In addition, Villella found an intimate letter written by his wife to the man who had driven her home.  When Villella confronted his wife with his suspicions, she admitted that she was indeed having an affair with that same man.

          Tthe trial judge did not, however, let the jury hear any evidence about the fact that the man whom Ms. Villella was having an affair with had previously admitted that he had had such an affair and that he had driven her home on one occasion.  The judge refused to let the jury hear that evidence because he believed it was irrelevant. 

          Villella was ultimately convicted of first-degree murder and appealed his conviction to Florida's Fifth Distict Court of Appeal.

          Fortunately for Mr. Villella, the appellate court disagreed with the trial judge and granted Villella a new trial since it believed that such evidence would have corroborated Villella's statements to the police that his wife was having an affair and that it would also have shown that his belief that his wife was having an affair had merit to it and was not simply a lie made up in an attempt to get away with murder.

• Print
• Comments
• Trackbacks

          On July 12, 2008, I wrote an article on this website entitled "How to Get a Criminal Charge Dropped" in which I discussed Florida's pretrial intervention programs [PTI] that are authorized by Florida statutes sections 948.08 and 948.16.  In that article, I stated that "[s]uccessfully completing a PTI program is one way of getting a criminal charge dropped without having to go through the stress of a trial." 

          While that is undoubtedly true, one prerequisite for entering a pretrial diversion program in Florida frequently includes admitting in writing that one is guilty of the charge that one is accused of committing.  What difference does that make, you might ask, given the fact that the case will eventually be dropped by the prosecutor if the person entering the PTI program successfully completes it? 

          This article addresses that question by identifying three situations in which admitting guilt as part of entering a PTI program can have unforeseen and potentially disastrous consequences for the person who admits guilt.

          1.  The situation that I see arise most frequently involves those clients who have been offered an opportunity to enter and complete the PTI program but who are not yet United States' citizens. Immigrants such as these who admit that they have committed even minor criminal offenses can face various negative consequences including deportation. 

          When this situation arises, it is almost always a good idea to see if the prosecutor who is handling the case will agree to waive the requirement that the client admit guilt so that the client does not later face unintended immigration consequences.

          The New York City Bar Association has published an article entitled "The Immigration Consequences of Deferred Adjudication Programs in New York City."  Although this article pertains to New York City in particular, much of the information contained in it is applicable to Florida residents as well. 

          2.  The second situation involves those clients who are fearful that they will lose their jobs if their employers discover that they have admitted committing a crime.  This particular situation is addressed in the October 2008 issue of the The Florida Bar Journal in an article entitled "Diversion Programs:  PTI  . . .  Dismissal  . . .  Problem Solved . . . or Is It?"  The authors of this article, George E. Tragos and Peter A. Sartes, write that admitting guilt as part of entering a PTI program "has been known to cause problems with employers whose employee conduct manuals include language about accepting responsibility or guilt as a cause for termination." 

          One solution suggested by the authors is to try to get the prosecutor to waive the admission of guilt by providing the prosecutor with that portion of the client's employment manual which states that such an admission may result in the client being fired.

          3.  The third situation arises when a client violates one or more conditions of the PTI agreement.  What that happens, the client is removed from the PTI program and ordered to return to court to resolve his case.  If the client decides to resolve his case by proceeding to trial, it would seem that his prior admission of guilt when first entering the PTI program could be used against him at his trial.  Florida statute section 90.608 seems to state as much when it says that "[a]ny party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness's present testimony."

          However, attorneys Tragos and Sartes, who were quoted above, disagree with this  conclusion when they write in their article that the "acceptance of guilt cannot be used as a confession or admission later should the intervention fail and the case reverts to prosecution . . . ."  The authors do not, however, cite any statutory or case law authority to support such a statement.

• Print
• Comments
• Trackbacks

          On September 20, 2008, I posted an article on this site which contains a videotaped recording of a police officer repeatedly using a taser on a man who was sitting on the ground by the side of the road in Washington County, Florida.  Fortunately, that man lived.  Yesterday, however, a man was tasered by the police in Brooklyn, New York and then fell to his death.  The story--including a videotaped recording of the man being tasered and falling to his death--was reported in the New York Post as follows:

         "Police fired a Taser at a naked Brooklyn man armed with only a fluorescent light tube yesterday, sending him falling to his death from a second-floor ledge after he went on a 40-minute rant.

          Iman Morales' mom begged cops not to hurt her son, telling them he's sick - then watched in horror as he plunged from the top of the roll-down gate on which he'd been perched.

          An Emergency Services officer, acting on the orders of his boss, fired at the 35-year-old man at around 2 p.m., as he waved the 8-foot fluorescent light tube, police sources said.

          'His body froze up and he fell face-first,' said Sean Johnson, who witnessed the drama at 489 Tompkins Ave. in Bedford-Stuyvesant.

          Morales, who crashed 10 feet to the pavement, died a few hours later at Kings County Hospital.

           Asked if police followed the proper protocol for using a Taser, [New York City Police Department] spokesman Paul Browne said, 'That's being reviewed.'

          Amid his mostly unintelligible rant, Morales was heard yelling, 'You're going to kill me. I'm going to take everyone with me.'

          He also screamed, 'I'm going to die. You're all going to die with me.'

          Morales first emerged hanging out a third-floor window after a blowup with his mother at around 1 p.m., witnesses said.

          Twenty minutes later, he climbed the fire escape to the fourth floor, where he tried to force his way into a neighbor's apartment.

          'He tried to come into my window and I ran out,' said 40-year-old Tonya Wright.

          "He said, 'Let me in.' I told him, 'I'm not letting you in.' "

          Morales then headed to the second floor and screamed to the crowd, which included his frantic mom.

          "She was saying, 'No! No! Don't hurt him. He is sick,' " Wright said.

           With police shouting for him to get down, Morales made his way to a ledge above a the gate.

          'Walk down now! Move down!' the police can be heard shouting to him on video.

          He then picked up the light tube and waved it in the air before jabbing cops who had climbed out of the windows above.

          'When he was poking the cop, people were laughing,' Johnson said.

          He refused orders from the officers and continued his incoherent tirade.

          Finally, one of the [Emergency Services Unit] cops on the street shot him with the Taser.

          'He just fell face first,' said witness Sean Brown. 'People were screaming and yelling. It was wrong.'

          It was unclear what set off the episode, but, said Johnson, 'once he started hitting the cop with that pole, that's when it turned serious.'

          Morales had one prior arrest, for a Manhattan petit larceny.

          'This is very out of character,' said the building's superintendent, Charlene Gayle, 31.

          'Nice guy, clean cut, well kept, never irrational. Didn't have irrational behavior.' "

• Print
• Comments
• Trackbacks

          In a recent federal case called Buckley v. Haddock, the Eleventh Circuit Court of Appeals was asked to decide whether a deputy sheriff's repeated use of a taser gun while trying to arrest a motorist by the side of the road in Washington County, Florida constituted excessive use of force in violation of the Fourth Amendment to the United States Constitution.  In ruling that the deputy did not use excessive force, the Court stated:

          "Needless to say, officers acting alone may not always use any and all force necessary to complete an arrest without assistance.  If Deputy Rackard had used more severe techniques (beaten [the motorist's] head with a club or shot him, for example), this case would be a different case.  Here, the record shows that Deputy Rackard only used moderate, non-lethal force; and he did so only after reasoning with [the motorist], then after trying to lift [the motorist], and finally after repeatedly warning [the motorist]-a warning given before each use of the taser-that a taser would be used. In short, Deputy Rackard gave [the motorist] ample warning and opportunity to cease resisting before the deputy resorted gradually to more forceful measures. Even then, [the motorist's] injury was not great; and the deputy holstered his taser after using it briefly three times."

          However, one of the judges on the appellate court disagreed stating:

          "I write to express my view that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant—who is sitting still
beside a rural road and unwilling to move—simply to goad him into standing up. I also conclude that at the time of the incident, Deputy Rackard was on fair notice that his conduct was unconstitutional. Not only did Deputy Rackard unnecessarily discharge his taser gun against Mr. Buckley three times, but each time he did so, he repeatedly prodded Mr. Buckley’s body with the stun gun’s live electrodes—inflicting additional pain and leaving Mr. Buckley with sixteen burn
scars."

          Did Deputy Rackard use excessive force when he repeatedly tasered the motorist?  Because the entire incident was captured on a police video camera, you can view the video for yourself and come to your own conclusion.

• Print
• Comments (3)
• Trackbacks

          It is often the case that the evidence against persons charged with federal crimes is overwhelming while the sentences imposed are severe.  Because of that, many people who are charged with federal crimes are more interested in entering into a plea agreement with the prosecutor (who is called an Assistant United States Attorney) than they are in having a trial where their guilt or innocence is decided by a jury consisting of twelve members of the community.

          One frequently-employed way of getting a reduced sentence in a federal case is for the accused (who is referred to as the defendant) to provide substantial assistance to the prosecutor and to other law enforcement agents.  Such assistance often consists of providing information about co-defendants or about other crimes that the defendant has knowledge of.  Defendants (and their lawyers) tend to find such arrangements to be nerve-wracking because of the possibility that the information provided by the accused to law enforcement may later be used by the prosecutor to charge the defendant with additional crimes. 

          It is partly because of that concern that proffer agreements exist.  These written agreements typically provide that the statements made by a defendant during his meeting with law enforcement agents may not be used against him at his trial unless he says something to the jury that differs from what he told the agents.  It is common for such agreements to explicitly state that a defendant is being offered only limited use immunity for nonviolent crimes, not derivative use immunity or transactional immunity.

          Earlier this month, the Eleventh Circuit Court of Appeals decided the case of United States of America v. Schwartz which addresses the issue of proffer agreements.  This case is significant because it narrows the protection that proffer agreements were traditionally thought to have provided.  In the Schwartz case, the prosecutor sent a proffer letter to the lawyer for one of the defendants which gave the defendant limited use immunity in exchange for the information that he would provide to law enforcement agents.  After the defendant agreed to this arrangement, he spoke with agents on four different occasions.  One of those agents then went before a grand jury and testified as to what the defendant had stated at the four meetings.  The grand jury, in turn, returned a superseding indictment against that particular defendant.  Later, when the accused learned of what had occurred, he filed a motion asking the judge to dismiss his indictment because the prosecutor used what he believed were immunized statements to obtain the superseding indictment.

           On appeal, the Eleventh Circuit Court disagreed with the defendant in part because the proffer letter did not directly address whether the defendant's immunized statements could be presented to a grand jury.   In addition, the proffer letter stated that the accused waived his right to have a Kastigar hearing in the future.  A Kastigar hearing, which has its origin in the United States Supreme Court case of Kastigar v. United States, is a hearing to decide whether the prosecution presented immunized testimony to a grand jury in violation of a person's privilege against self-incrimination that is guaranteed to all of us by the Fifth Amendment to the U.S. Constitution.

           The upshot of the Schwartz case is that lawyers for clients who are charged with federal crimes must scrutinize the language contained in proffer agreements so that their clients do not unwittingly provide prosecutors with evidence that is later used against them in court.

• Print
• Comments
• Trackbacks