Right to a Fair Trial

Over the years, we’ve strived to protect our clients’ rights to a fair trial in the many appeals we have handled. The following are a few highlights.

In State v. Vazquez, 419 So. 2d 1088 (Fla. 1982), the Florida Supreme Court held that where a defendant is charged with possession of a firearm by a convicted felon as well as other offenses, severance of the possession count is required because prejudice to the defendant on the other counts due to the fact of the prior conviction outweighs judicial economy.

In Francis v. State, 413 So. 2d 1175 (Fla. 1982), the Florida Supreme Court held that jury selection is a critical stage at which an accused has the constitutional right to be personally present. Where the accused is not voluntarily absent, the record must establish a knowing and intelligent waiver by him of his right to be present, or ratification of counsel’s actions taken in his absence.

In State v. Singletary, 549 So. 2d 996 (Fla. 1989), the Florida Supreme Court ended the practice of trial judges occasionally absenting themselves during voir dire, and established that no questioning of prospective jurors in a criminal case may take place outside of the presence of a trial judge.

In Coney v. State, 653 So. 2d 1009 (Fla. 1995), the Florida Supreme Court established the right of the defendant, under Florida Rule of Criminal Procedure 3.180, to be present at sidebar if that is where peremptory challenges are exercised, unless that right is personally waived by the defendant.

In Ivory v. State, 351 So. 2d 26 (Fla. 1977), we successfully argued that when a jury has a question during deliberations, the trial judge must give defense counsel the opportunity to participate in the discussion about the answer to be given.

In Fleitas v. State, 867 So. 2d 512 (Fla. 3d DCA 2004), the court ordered a new trial due to the improper testimony of an assistant state attorney. It forcefully explained: “[F]or what we think and hope is the first and last time in legal history, an assistant state attorney was permitted to be called as a witness in the case and to testify, allegedly as ‘background,’ to her investigation of the case itself, her opinion concerning the defendant’s guilt, her assessment of the victim’s credibility, and that the defendant had committed many other uncharged crimes against the victim.”

In Echevarria v. State, 845 So. 2d 340 (Fla. 3d DCA 2003), the defendant entered into a plea agreement pursuant to which he agreed to testify against his codefendant, and the state agreed that it would not oppose his parole if he testified. However, the chief prosecutor later personally advised the parole board that the defendant should not be paroled. The court held this was a breach of the plea agreement that entitled the defendant to withdraw his plea. Shortly thereafter, the defendant entered into a new plea agreement, pursuant to which he was released.

In Adams v. State, 830 So. 2d 911 (Fla. 3d DCA 2002), the court held that the prosecutor’s repeated personal attacks on defense counsel were so prejudicial as to impair the legal validity of the entire trial. It stated that the closing argument inflamed the jury and was “intolerable and anathema to the constitutionally guaranteed words and spirit of a fair trial.” Therefore, a mistrial should have been granted even though the trial court had sustained objections to the attacks.

In Duarte v. State, 598 So. 2d 270 (Fla. 3d DCA 1992), the court held that the state’s failure to disclose a fingerprint technician’s report, which found a fingerprint that was not the defendant’s, violated Brady v. Maryland, 373 U.S. 83 (1963), and required a new trial.

In Adkins v. State, 32 Fla. L. Weekly D1425 (Fla. 3d DCA June 6, 2007), available at 2007 WL 1610147, the state’s murder case against the defendant rested entirely on one witness, whom the defense argued was the real perpetrator. The appellate court held that the state’s failure to disclose that the witness had been the subject of twelve separate criminal complaints in the year after the murder violated Brady v. Maryland, 373 U.S. 83 (1963), and required a new trial even though this witness had been cleared of all charges, as the undisclosed evidence still could have impeached or undermined his credibility.

In Lavado v. State, 492 So. 2d 1322 (Fla. 1986), the Florida Supreme Court established the right of the defense to question prospective jurors on voir dire regarding their ability to fairly consider a particular defense (here, voluntary intoxication) and any bias or prejudice they may have against it. Asking simply whether a juror would follow the court’s instructions on the law is insufficient. Lavado has been applied to a variety of defenses, such as necessity, entrapment, self-defense and insanity. See e.g. Mosely v. State, 842 So. 2d 279 (Fla. 3d DCA 2003).

Basic “principles of fundamental fairness” sometimes require the trial court to appoint experts to assist the defendant in preparing and presenting his or her case, the court held in Dingle v. State, 654 So. 2d 164 (Fla. 3d DCA 1995). Our client was babysitting a child who became unresponsive and died of trauma to the brain and spinal cord. The state charged him with murder. His defense was that previous injuries to the child inflicted by someone else had caused the brain to swell, causing death. Shortly before trial, the state added three doctors to its witness list, all of whom would testify that either the child had no other injuries or they were inflicted the day the child died. When the defense sought the appointment of two pediatric experts to dispute that testimony, the trial court denied the request. On appeal, we successfully argued that the denial of the additional experts was, under the circumstances, an abuse of discretion.

In Teemer v. State, 615 So. 2d 234 (Fla. 3d DCA 1993), the court held that the Rape Shield Statute cannot be used to preclude DNA test results showing the defendant was not the source of semen found in the rape victim’s vagina, as that evidence was crucial to the defense of misidentification.

In Miami Herald Pub. Co. v. Morejon, 561 So. 2d 577 (Fla. 1990), the Florida Supreme Court held that when an on-duty reporter witnesses events relevant to a subsequent criminal charge, there is no privilege, qualified, limited, or otherwise, that shields the reporter from having to testify.

In Bryant v. State, 412 So. 2d 347 (Fla. 1982), we successfully argued that an independent act is a defense to accomplice liability under the felony murder doctrine. Bryant triggered the creation of Florida Standard Jury Instruction 3.6(l) on the defense of independent act for felony murder.

In Roberts v. State, 335 So. 2d 285 (Fla. 1976), the Florida Supreme Court held that where the defense of insanity is fairly raised, the jury must be instructed upon the consequences of a verdict of not guilty by reason of insanity. This holding is the foundation for Florida Standard Jury Instruction 3.6(a).

In Peart v. State, 756 So. 2d 42 (Fla. 2000), post-conviction motions were filed claiming violations of Florida Rule of Criminal Procedure 3.172(c)(8), which requires trial courts to advise defendants of the deportation possibility as a consequence of their pleas. The Florida Supreme Court held that to show prejudice, the defendants need not prove a probable acquittal at trial. In Dixon v. State, 730 So. 2d 265 (Fla. 1999), we successfully maintained that the time period for seeking post-conviction relief, on the basis of a change in the law that is given retroactive effect, should be enlarged by holding that the two-year window begins to run from the date the decision announcing retroactivity becomes final, not when the decision announcing the change in the law was issued.